Family Structures and Canadian Family Law

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 1-13

11

Chapter 1

Family Structures and Canadian

Family Law

A. DEFINITIONS OF “FAMILY”

e term “fam ily” does not have a precise legal denition. L aw tends to regu-

late the rights and obligations of individua ls, as distinct from groups, such

as families, howe ver they may be constituted. C anadian fa mily law might

more properly be called the “ law of persons” insofar as it concentrates on the

rights of indiv iduals whose fa mily relationships have become dysfunct ional.

In short, Canad ian family l aw deals prim arily with the pathology of family

breakdown and its lega l consequences.

People often perceive “marri age” and “family” as sy nonymous, but these

words are not interchangeable in law. e term “ family” is elusive and dees

exact denition. Many, but not all, Canadi an famil ies are the products of a

marria ge. More often than not, the presence of ch ildren signi es a family

relationship. Children may be born within or outside of marr iage. eir par-

ents may or may not live together. e parents may have lived toget her before

or after the birt h of the child, but may no longer do so by rea son of separa-

tion or divorce. Some children a re adopted. In relatively rare situations, a

child ’s birth may have resulted from sur rogate parenting arrangements or

the use of new reproductive tech nologies. Children are usu ally fami ly mem-

bers of the household in which t hey reside but this is not invar iably true.

Some children do not live w ith either of their parents or w ith aunts, uncles,

or grandparents. ey m ay live in foster homes or even with friends or neigh -

bours. A new de facto fa mily may co-exist w ith the family of origin.

Family relationships c an exist when t here is neither marr iage nor a

parent–child or ancest ral relationship. Unmarried couples of the opposite

sex or same sex may be rega rded as members of the same family for socia l or

legal purposes.