Author:Julien D. Payne - Marilyn A. Payne

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Family law is a changing and dynamic field. In the twenty-first century, Canadian families will encounter new challenges. Marriage and the family are no longer synonymous. The traditional nuclear family of the 1950s, with its breadwinning husband, homemaking wife, and their two or more children, is a minority group. Two-income families, with or without children, high divorce and remarriage rates, and the increasing incidence of unmarried cohabitation, whether involving opposite- or same-sex couples, have fostered new family structures and radical legal reforms. At the same time, there has been increased recognition of the inherent limitations of the law in regulating marriage and the family.

The public and the legal profession are aware of the devastating impact that family breakdown can have on women and children. The feminization of poverty that results from single parenthood, family breakdown, and divorce continues to be of pressing concern to provincial and federal governments as they seek to enforce spousal and child support payments that have fallen into default, and endeavour to provide a socio-economic safety net for sole parents and children.

Canadian family law is continually in transition as it responds to evolving family structures. Chapter 1 of Canadian Family Law identifies the changing character of Canadian families and poses fundamental questions concerning possible future directions of law and social policy in Canada. In addition, it provides a review of the legal consequences of marriage breakdown and divorce since the enactment of the first dominion-wide Divorce Act in 1968. The fragmentation of legislative powers between the Parliament of Canada and the provincial and territorial legislatures is also addressed, together with the inefficient fragmentation of jurisdiction between diverse courts that has led to the emergence of specialized Family Courts.

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Chapter 2 focuses on the nature of marriage and the legal prerequisites to a valid marriage. Much of the legal analysis in this chapter has a long history that can be traced back to ecclesiastical origins in England. However, Chapter 2 does not ignore contemporary issues that have confronted Canadian courts, such as the validity of same-sex relationships and marriages of convenience that are entered into for the sole purpose of gaining preferred immigration status.

Chapter 3 examines cohabitational relationships between persons of the same or opposite...

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