YOU'RE (STILL) MY PERSON: REIGNITING THE DISCUSSION ON RECOGNIZING AND REGULATING ADULT INTERDEPENDENT RELATIONSHIPS AND NON-CONJUGAL FAMILIES IN CANADA.

• Author: Lank, Hannah

INTRODUCTION 198 I ARE ADULT INTERDEPENDENT RELATIONSHIPS REAL? 199 II JURISPRUDENTIAL HISTORY OF 'FAMILY' IN CANADIAN CASE LAW 201 A. Friendship Should Be Recognized by the Law 203 B. Adult Interdependent Relationships in Alberta 207 C. Post-AIRA and Beyond Conjugality 208 D. Jurisdictional Challenges of Adult Interdependent Relationships 210 III EXPANDING FAMILY LAW TO INCLUDE SUPPORT FOR ADULT INTERDEPENDENT RELATIONSHIPS 211 A. Why Friendship Should Be Recognized by the Law 211 B. Friendship vs Family 212 C. Public Policy Reasons for Regulating Adult Interdependent Relationships 214 IV REGULATING ADULT INTERDEPENDENT RELATIONSHIPS: OPT-IN REGISTRATION SCHEME 217 A. An Imperfect Model 222 V CONCLUSION 223 INTRODUCTION

In the popular television show Grey's Anatomy, lead character Meredith tells her friend Cristina: "You're my sister. You're my family. You're all I've got." This same sentiment is embodied in a line Cristina later says to Meredith: "You are my person." The phrase 'you're my person' has infiltrated popular culture and many use it to refer to the close and meaningful relationships they have with a friend, displacing the commonly-held notion that the most meaningful relationships can only be found within the bounds of romantic association or blood ties. Rather, as popular culture repeatedly demonstrates, friendship can be the most meaningful relationship in an individual's life. Other popular television shows like Broad City, Friends, and Golden Girls all share this same message. The concept of friendship as a central relationship seems to resonate with viewers--so then why are deep and centrally important friendships not presented as legitimate alternatives to romantic and sexual relationships?

Thereason is perhaps that close, 'you're my person'-type friendships--which can be referred to as adult interdependent relationships (AIRs)--are not recognized by the law and are continually distinguished from romantic and sexual relationships. However, many people organize their lives around friendship and engage in AIRs. This paper will argue that the legal distinction between the types of relationships is arbitrary and that the law should expand to recognize AIRs through an opt-in registration scheme.

The paper will begin with a brief overview of Canadian jurisprudential discussions of conjugality and family. Although expansions of the legal definition of family have stagnated since the legalization of same-sex marriage, the Law Commission of Canada's (LCC) report Beyond Conjugality proposed recognizing close personal adult relationships in 2001. (1) The question of legally recognizing AIRs is increasingly relevant in light of contemporary issues such as the COVID-19 pandemic and housing affordability. These crises highlight the important public policy reasons for legally recognizing AIRs, including the positive impact this may have on addressing loneliness, gaps in caregiving, and gender inequality.

Further, this paper will argue for an opt-in registration scheme and consider how it might work for adults who choose to register their relationship. The registration scheme could be either mandatory, optional, or a combination of the two such that AIR partners must subscribe to certain benefits and obligations but can choose to forego others. Registration could also allow for more than one person to be designated for certain benefits, recognizing that individuals may have different people for different things and so promoting greater autonomy of choice.

In sum, it is time for the law to catch up to what television has been telling us for decades: friendship can be just as fulfilling and meaningful a way to organize one's personal life as marriage or a common law partnership. The law should aim to support you and 'your person,' no matter what form that relationship takes. Expanding legal recognition to adult interdependent relationships is a necessary step for realizing individual autonomy and equality.

I ARE ADULT INTERDEPENDENT RELATIONSHIPS REAL?

As will be discussed below, some scholars have questioned whether AIRs are merely academic fetish. Do people actually engage in serious AIRs, and if so, do these relationships need legal recognition? Accounts of people organizing their lives through AIRs are largely anecdotal, but they are not rare. Many major publications have recently shared articles detailing close friendships as an alternative model of family. These are the individuals and the relationships that must be kept in mind when considering whether AIRs should be legally recognized and, if so, what that should look like.

In 2019, Huffpost published the first-person account of Deena, a heterosexual woman with two grown children who lives with her best friend Maggie. (2) When Maggie married her husband, Deena and Maggie decided that he would move in with them and they would all live together as a family. The three adults are not polyamorous; Deena describes their group relationship as "family." In her article, Deena reflects on this arrangement and how it fits in with societal expectations, stating:

The rules say co-habitation is for young people or those who can't afford rent on their own, but how lovely would it be if everyone came home to companions who were chosen not because of blood relation or dependency, but because they fit together as family? (3) In 2020, The Atlantic published an interview with two women titled "The Empty Nesters Who Run a Bookstore--And Live Together." (4) VaLinda and Arrylee both have grown children from previous relationships. They decided to move in together as friends and run a bookstore. When asked whether she would recommend their arrangement, VaLinda reflected: "You know what? This is 2020, and I would recommend it. When you raise a kid and they leave the house, you look up and you are living in this huge house by yourself with a dog... you've got to have that human interaction, whether they're your roommate or your husband or your wife. And this pandemic just makes it even worse." (5)

The arrangement between VaLinda and Arrylee highlights an important aspect of AIRs: they offer public policy benefits that should not be ignored, such as helping to address loneliness. This is particularly important for older adults, who may experience heightened loneliness, economic insecurity, and greater caregiving needs.

These benefits are apparent in the relationship between Marike and Karin, a lesbian couple who "adopted" their older friend, Elisabeth, after the death of Elisabeth's husband. Elisabeth is twenty years older than Marike and Karin. The three women now live together in Nova Scotia, where they "cook together, eat together and spend their time together much the way any family would." (6) Reflecting on their arrangement, Marike stated: "Maybe it takes a village also to keep an elder, not just to raise a child... The [COVID-19] pandemic has exposed devastating shortcomings in how Canada provides care for its elderly population." (7) The public policy benefits of supporting AIRs will be further explored below.

AIRs cannot be defined by form because of their inherent heterogeneity, but perhaps by looking at their functional attributes we can more clearly see the ways in which these relationships are familial in nature. AIRs challenge our understanding of family in form, but not in function. For many, friends are indeed the family they choose.

II JURISPRUDENTIAL HISTORY OF 'FAMILY' IN CANADIAN CASE LAW

Discussion of what 'family' means was prolific in the 1990's, when the question of 'who and what constitutes family' was really asking 'should blended families and same-sex families be recognized as legal families in our society?' (8) As a result of this discussion, the broader question of what family actually looks like and why it is important began to infiltrate the jurisprudential conscious, especially that of Supreme Court of Canada (SCC) Justice L'Heureux-Dube. In the 1992 case of Moge v Moge, (9) L'Heureux-Dube J understood the importance of the functional attributes of family, however she ultimately associated family with marriage:

Many believe that marriage and the family provide for the emotional, economic, and social well-being of its members. It may be the location of safety and comfort, and may be the place where its members have their most intimate human contact. (10) When Canada (Attorney General) v Mossop (11) was heard at the SCC the following year, it was clear that L'Hereuex-Dube J understood the family's function as providing a space for the fundamental well-being of its members. Dissenting in Mossop, L'Heureux-Dube J further developed her view of family from Moge, emphasizing that family is more about function than anything else. L'Heureux-Dube J asks whether there is "a plain meaning for 'family status'?" and answers that "'family status' is an attribute of those who live as if they were a family, in a family relationship, caring for each other." (12)

This phrasing prioritizes the function of family over its form, but L'Heureux-Dube J is left with the question of what it means to live "in a family relationship." She ultimately adopts a functional definition of family that leaves the door open for a variety of non-traditional families. L'Heureux-Dube J endorses the definition provided by the American Home Economics Association that a family is "two or more persons who share resources, share responsibility for decisions, share values and goals, and have commitments to one another over time," (13) but references other external sources as well to develop a broad understanding of what it means to live in a family. She emphasizes that "[i]f there is value in encouraging individuals to form stable and emotionally intimate relationships, such relationships can be forged and maintained in a wide variety of family forms." (14) L'Heureux-Dube J concludes:

It is possible to be pro-family without rejecting less traditional family forms. It is not...