Family relationships are both a source of profound satisfaction, and a source of profound challenges for Ontarians. All family relationships end eventually, and it is not always death which does them part. At least 40% of intimate relationships between adults are eventually terminated by the choice of one or both parties. Some intimate relationships dissolve painlessly. Many others, however, create serious challenges when they end, both for the individuals involved and for Ontario as a whole. From the province’s point of view, these family challenges can be analogized to a public health problem. The malady in question is not generally fatal, but it is certainly widespread.
This paper considers first the problem, then the prevention, and finally the treatment. In so doing, it deploys cost-benefit and economic lenses as analytical tools. This paper has been prepared for the family law procedure project currently being conducted by the Law Commission of Ontario (LCO). The LCO’s work will also draw together research on interdisciplinarity in the legal profession and the results of a broad public consultation with Ontarians. This paper will refer to the findings from these consultations, and seek to relate them to the existing scholarly literature. This paper also includes tentative reform recommendations where they seem to be justified by the research.
Part I of this paper defines the phrase “family challenges” and introduces cost-benefit analysis, with a focus on its potential and its limitations within this field of inquiry. Part II identifies three sources of family challenges: (i) the economic vulnerability of Canadian families, (ii) sacrifices in earning potential during family life, and (iii) conflict arising upon relationship breakdown. Part III turns to mechanisms by which the province might prevent family challenges, either by preventing relationship breakdown or by preventing the challenges which arise upon breakdown. In Part IV, the paper turns to government responses to family challenges. Section IV.A is about increasing the legal information and services, and identifying the costs and benefits of alternative dispute resolution and litigation. Section IV.B analyzes the potential of administrative, state-driven responses to family challenges. Part V offers a brief conclusion.
I. A. Subject Matter: the Families and the Challenges Under Examination Here
Sociologists, psychologists, and public policy experts have all proposed definitions of the word “family.” “Family law,” as the subject is taught in Canadian law schools and classified in case digests, may include issues such as child protection and assisted reproduction law. This paper, however, focuses on families which involve intimate or “conjugal” relationships between adults. This includes same-sex and non-marital relationships and relationships which do not produce children. The focus of this paper is the challenges faced by these families and their individual members after the adult cohabitation ceases. However the roots of these post-cohabitation challenges must be traced to the experience of the family members during cohabitation.
This paper encompasses neither families which never involved an intimate relationship between adults, nor families in which the intimate inter-adult relationship never dissolved. The rationale for this limitation of scope is that there is a distinct set of challenges posed by the dissolution of intimate relationships between adults. These challenges are those discussed in sections II.B and II.C – sacrifices in earning potential and interpersonal conflict arising on relationship breakdown. Other families — the family involved in a child protection proceeding, the family seeking access to artificial reproduction technologies, the single parent seeking to support an adopted child — face a distinct set of challenges. Because the time and space available do not permit a thorough treatment of this second set of challenges, they must be left for another paper.
I. B. Unit of Analysis: Individual or Family?
This paper will consider the welfare and interests of Ontarians who were members of families, while seeking to simultaneously keep in view the interests of families as units. Our family law and our dispute resolution system currently focus on the individual rights and obligations of family members. To some extent, this is an inevitable consequence of our law’s aspiration to protect the interests of (i) people who no longer wish to cohabit, and (ii) individuals whose intimate relationships have been terminated by the other party. The Canadian Charter of Rights and Freedoms has arguably helped entrench the individualism of Canadian family law.
However, it is also possible to think creatively about protecting the interests of family units, even when those families appear to be disintegrating. At least if children are present, dispute resolution can be conceived not as the end of a family but rather as a reconfiguration of a family. The law aspires to preserve a child’s relationships with both parents in most cases. Therefore, parents often do not or can not entirely disentangle their lives for as long as their child or children remain below the age of majority. This may require family law process to consider the emotional health of the parents, and the need to support a modified, post-cohabitation “family.” Doing so can make the adults into better parents, which supports the law’s overriding goal in parenting litigation of upholding the best interests of the child.
There is some precedent in the literature for a focus on families as units. There is also an ongoing popular and scholarly debate about whether or marriage is itself “in decline.” The focus of interest in this debate is not so much the well-being of the individuals within families as it is the well-being of the families as units. The case for triage or differentiated case management is largely based on the idea that different families (as opposed to different individuals) are best served by different services and dispute-resolution approaches. The costs and benefits of focusing on family units versus individuals awaits a fuller exploration, but the literature does provide a basis to explore this intriguing possibility. The interests of broader communities and of Ontario as a whole may be correlated with a progressive and therapeutic response to family units in crisis. This paper will, whenever possible, seek to incorporate both the individual and the family as units of analysis.
I. C. The role of choice in the formation of family
Different scholarly perspectives have come to different conclusions about the role of choice within the formation of the family. To some extent, intimate conjugal relationships may be understood as voluntary, contractual arrangements established by consenting adults for mutual benefit. The mutual benefit is psychological but also financial, insofar as cohabiting and sharing expenses can raise the material standard of living for both parties.
Alternatively, these relationships may be sites of coercion and power. Meg Luxton, for example, suggests that
women’s primary responsibility for domestic labour, and particularly childcare and other caregiving responsibilities, is central to women’s economic dependency on men … the nuclear family form results in women doing vast amounts of socially necessary labour for free and in ways that are not recognized or validated socially.
Choice is also a central issue in the debate about distinctions between cohabitation and marriage. Some scholars argue that the law should not make distinctions between couples who have cohabited for extended periods and couples who married. Others reply that the choice to marry or not marry is a significant one, from which private family law consequences may legitimately follow. Another line of critical inquiry focuses on the concept of “conjugality,” and queries whether the law should distinguish between those whose cohabitation is “conjugal” and those whose cohabitation is not.
Marriage itself and its historical development have been widely explored in the sociological literature. Ernest Burgess argued in 1945 that, near the beginning of the 20th century, a transformation had occurred in the United States from “institutional marriage” to “companionate marriage.” Whereas the former type of marriage was a “building block of society” and regulated by social norms, the latter was fundamentally defined by the affective bonds between the parties and by their choice of each other. John Amato and his colleagues have suggested that this trend continued into the post-war period:
As men and women gained greater freedom to engage in multiple sexual relationships before marriage, marry whomever they pleased, negotiate their own marital roles, and leave unsatisfactory unions, people came to focus increasingly on whether potential spouses would be good companions, emotionally supportive mates, and satisfying sexual partners.
This development appears to have elevated the importance of individual choice in the formation intimate relationships. Andrew Cherlin argued in 2004 that a second transformation had subsequently occurred, towards “individualized marriage, in which the emphasis on personal choice and self-development expanded.” Amato et al suggested in their 2007 book that “we may be witnessing a shift toward a new view of marriage that values the institutional basis of marriage but also recognizes the importance of companionate and individualistic elements – a form of marriage in which individual happiness and obligations to the larger society are in balance.”
In a diverse and multicultural jurisdiction like Ontario, it is likely that the nature of intimate relationships, and the extent to which they are the products of choice or coercion, are highly dependent on the values and cultural background which the parties bring into them. Kerry Daly’s comments about “parenting culture” might be equally applicable to the influence of culture on decisions about family relationships generally:
Culture consists of an ever changing constellation of meanings and practices, that provides a means for examining the flow of family experience within context … In our everyday lived experience, culture is usually hidden from view, because it is so familiar and so deeply embedded in our habits and routines. For parents, this often means that the everyday decisions of parenting are shaped by non-specific, background undercurrents that guide what seems right, natural or appropriate. Culture is paradoxical insofar as it is pervasive in everything we do but so often it is indecipherable. It is a case of the fish not being able to see the water in which it swims.