[1] “Intimate relationships between adults” includes both marriages and non-marital cohabitational relationships. Statistics Canada estimates that 38% of recent marriages will end in divorce before the 30th anniversary. (Anne-Marie Ambert, Divorce: Facts, Causes & Consequences, 3d Ed. (Ottawa: Vanier Institute of the Family, 2009), online: Vanier Institute of the Family <http://www.vifamily.ca/library/cft/divorce_09.pdf> (last accessed: 20 June 2010) at 3). In 2001, 16% of all Canadian couples who lived together were cohabiting without marriage. (Anne-Marie Ambert, Cohabitation and Marriage: How are they Related? (Ottawa: Vanier Institute for the Family, 2005), online: Vanier Institute for the Family <http://www.vifamily.ca/library/cft/cohabitation.pdf> (last accessed: 20 June 2010) Half of all of these relationships dissolved within five years. (Anne Milan, “One hundred years of families” (2000) 56 Canadian Social Trends 2).

[2] Among lower- and middle-class Ontarians, 12% reported that they had experienced “family relationship problems” within a three year period. (R. Roy McMurtry et al., Listening to Ontarians: Report of the Ontario Civil Legal Needs Project (Toronto: Ontario Civil Legal Needs Project Steering Committee, 2010), online: Law Society of Upper Canada <http://www.lsuc.on.ca/media/may3110_oclnreport_final.pdf> (last accessed: 20 June 2010) at 21).

[3] These recommendations are identified in bold font.

[4] An interesting, and very broad example of the latter is that offered by Canada’s Vanier Institute of the Family at http://www.vifamily.ca/about/definition.html.

[5] Part I of the Constitution Act, 1982.

[6] According to one recent policy report, family law involves “a restructuring of the family at a time of crisis… when children are involved, family members remain financially, emotionally and practically interdependent indefinitely.” (Barbara Landau et al., Final Report And Recommendations From The Home Court Advantage Summit (November 22‐23, 2009) (Toronto: ADR Institute of Ontario Ontario Bar Association, and Ontario Association for Family Mediation, 2009), online: ADR Institute of Ontario <http://www.adrontario.ca/media/INTERIM%20REPORT%20FINAL%20BL%20Dec%2010-09%20_2_.pdf> (last accessed: 20 June 2010) at 7.)

[7] Divorce Act, R.S.C. 1985, (2d Supp.), c. 3, s. 16(10).

[8] Rhonda Freeman, “Parenting after Divorce: Using Research to Inform Decision-Making about Children” (1998) 15 Can. J. Fam. L. 79 at 95-96; Solangel Maldonado, “Cultivating Forgiveness: Reducing Hostility and Conflict after Divorce” (2008) 43 Wake Forest L.Rev. 441.

[9] See e.g. Andrew S. Watson, “The Children of Armageddon: Problems of Custody Following Divorce” (1969) 21 Syracuse L. Rev. 55 at 78; Elizabeth S. Scott and Robert E. Scott, “Parents As Fiduciaries” (1995) 81 Va. L. Rev. 2403 at 2439-2440; Carol Smart and Bren Neale, Family fragments? (Malden, Mass.: Blackwell, 1999) at 198-199.

[10] Paul R. Amato et al., Alone together : how marriage in America is changing (Cambridge, Mass.: Harvard University Press, 2007) at 4-8.

[11] Nancy Ver Steegh, “Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process” (2009) 42 Fam. L.Q. 659; Peter Salem, “The Emergence of Triage in Family Court Services: The Beginning of the End for Mandatory Mediation?” (2009) 47 Fam. Ct. Rev. 371; Amy G. Applegate, Amy Holtzworth-Munroe and Brian M. D’Onofrio, “Family Dispute Resolution: Charting A Course For The Future” (2009) 47 Fam. Ct. Rev. 493 at 495.

[12] Laura Kipnis, writing in a polemical vein and with tongue perhaps in cheek, proposes that love and marriage might be “the most efficient kind of social control possible. … Wouldn’t the most elegant means of producing acquiescence be to somehow transplant those social controls so seamlessly into the guise of individual needs that the difference between them dissolved? … what if it could be accomplished through love?” (Laura Kipnis, Against love : a polemic (New York: Pantheon Books, 2003) at 39).

[13] Meg Luxton, “Conceptualizing ‘Families’: Theoretical Frameworks and Family Research” in Maureen Baker ed., Families : changing trends in Canada, 5th ed. (Toronto.: McGraw-Hill Ryerson, 2005) 29 at 45.

[14] Minority judgment of L’Heureux-Dubé J. in Nova Scotia (Attorney General) v. Walsh, [2002] 4 SCR 325, 2002 SCC 83 (S.C.C.); Caroline A. Thomas, “The Roles of Registered Partnerships and Conjugality in Canadian Family Law” (2006) 22 Can. J. Fam. L. 223; Nicholas Bala, “Controversy Over Couples in Canada: The Evolution of Marriage and Other Adult Interdependent Relationships” (2003) 29 Queen’s L.J. 41.

[15] Majority judgment of Bastarache J. in Nova Scotia (Attorney General) v. Walsh, note 14; Noel Semple, “In Sickness And In Health? Spousal Support And Unmarried Cohabitants” (2008) 24 Can. J. Fam. L. 317.

[16] Brenda Cossman and Bruce Ryder, “What is Marriage-Like Like? The Irrelevance of Conjugality” (2001) 18 Can. J. Fam. L. 269; Beyond Conjugality: Close Personal Relationships Between Adults (Ottawa: Law Commission of Canada, 2001), online: Law Commission of Canada <http://www.lcc.gc.ca/research_project/cpra-en.asp> (last accessed: 20 June 2010). See also the European Court of Human Rights Case of Burden and Burden v. the United Kingdom (Application no. 13378/05, judgment issued on April 29 2008). In this case, two cohabiting sisters challenged English law for failing to extend to them a tax benefit which would have been available had their cohabitation been “conjugal” in nature.

[17] Ernest Watson Burgess, Mary Margaret Thomes and Harvey J. Locke, The family, from institution to companionship, [3d ed. (New York,: American Book Co., 1963).

[18] Amato et al., note 10 at 240.

[19] Andrew J. Cherlin, “The deinstitutionalization of American marriage” (2004) 66 J.Marriage & Fam. 848 at 848.

[20] Amato et al., note 10 at 240.

[21] Kerry Daly, The Changing Culture of Parenting (Ottawa: Vanier Institute of the Family, 2004), online: Vanier Institute of the Family <http://www.vifamily.ca/library/cft/parenting.html> (last accessed: 20 June 2010) at 4 (citation omitted).

[22] Zheng Wu, Cohabitation : an alternative form of family living (Oxford: Oxford University Press, 2000) and John Eekelaar and Mavis Maclean, “Marriage and the Moral Bases of Personal Relationships,” (2004) 31 J. of Law and Soc. 510.

[23] Family Law Act (Ontario), R.S.O. 1990, c. F.3 (“FLA”), Part IV.

[24] George M. Guess and Paul G. Farnham, “Cost-Benefit Analysis: The Case of Environmental Air Quality Standards” in George M. Guess & Paul G. Farnham eds., Cases in public policy analysis 2nd ed. (Washington, D.C.: Georgetown University Press, 2000) 303.

[25] Robert Sugden and Alan H. Williams, The principles of practical cost-benefit analysis (New York: Oxford University Press, 1978) at 89-90.

[26] John Hicks,”The Foundations of Welfare Economics” (1939) 49 Economic Journal 696 and Nicholas Kaldor, “Welfare Propositions in Economics and Interpersonal Comparisons of Utility” (1939) 49 Economic Journal 549.

[27] E.g. see Chapter 12 in Tevfik F. Nas, Cost-benefit analysis: theory and application (Thousand Oaks, Calif.: Sage Publications, 1996).

[28] Nas, note 27 at chap. 13.

[29] Frank Ackerman and Lisa Heinzerling, Priceless: on knowing the price of everything and the value of nothing (New York: Distributed by W.W. Norton, 2004).

[30] Guess and Farnham, note 24 at 308.

[31] Office of the Parliamentary Budget Officer (Canada), Methodology for Estimating the Fiscal Impact of the Costs Incurred by the Government of Canada in Support of the Mission in Afghanistan (Ottawa: Office of the Parliamentary Budget Officer (Canada), 2008), online: Parliament of Canada <ht