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.[1]  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.[2]

            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.[3]

            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.”[4]  “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.[5]

             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.[6] The law aspires to preserve a child’s relationships with both parents in most cases.[7]  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.”[8]  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.[9]

            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.”[10] 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.[11]  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.[12]  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.[13]

            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 pe