III. Preventative Responses to Family Challenges2017-03-03T18:33:19+00:00

            Part II of this paper identified three key family challenges: (i) the economic vulnerability of Canadian families, (ii) sacrifices in earning potential undertaken in intact families, and (iii) conflict arising on relationship break-down. Andrew Schepard has proposed that family conflict be identified and treated as a public health epidemic, due to its disease-like impacts upon society.[122] This means that both prevention and treatment are important. This Part will focus on the ways in which the government might prevent family challenges or reduce their severity before they occur.

 

III. A. Prevention of Relationship Break-Down 


            One way to reduce the impact of family challenges would be to reduce the number of intimate relationships which are voluntarily dissolved.  This was, indeed, a central social goal for many decades in Canada. Books were written, and professionals trained, with the goal of preventing divorce.[123]  Section 9 of the Divorce Act also reflects the policy objective of “saving” marriages.  It provides that family lawyers must “draw to the attention” of their clients to the statutory objective of “reconciliation of spouses,” and provide information about “marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation.”[124]  Some American scholars argue that preserving or “protecting” marriages should be an explicit goal of family law.[125]  For example, “covenant marriage,” a form of union which is designed to be more difficult to dissolve than normal marriage, is available to couples in some American states.[126]  The focus of this scholarship has generally been on saving marriages, as opposed to intimate cohabitations generally.  In fact, many of those who wish to “save marriage” from divorce also perceive non-marital cohabitation as a “threat” to marriage which society should resist.

While the law can make the legal state of marriage more difficult to exit, it is difficult to see how it can preserve family affection or harmony.  Nor can people be forced to cohabit.  Preserving the legal form of a marriage which lacks affection, harmony, or cohabitation has no apparent purpose. For these reasons, it seems more promising to assume that large numbers of intimate relationships will continue to dissolve before death does them part, and to examine ways to prevent or mitigate the challenges which arise when they do so.

 

III. B. Prevention of Challenges Arising Upon Break-down

            This section will consider what society can do for members of intact families so as to reduce the severity of the challenges they will face when and if those relationships dissolve.  Richard Susskind seems to be correct in suggesting that people “prefer to have a fence at the top of a cliff rather than an ambulance at the bottom.”[127]  It is worthwhile to consider how family challenges might be prevented.

            A key question which has emerged from the LCO’s public consultations pertains to the idea of “early intervention” in family disputes.[128]  How early is early enough?  The answer might be that early intervention must begin during cohabitations, in anticipation of the fact that many cohabitations will eventually be ended voluntarily.  One interesting finding from the Ontario Civil Legal Needs Project telephone survey suggests some scope for prevention of challenges. 14% of the respondents said that in the future they would be likely to experience family relationship problems.[129]  If it is true that many Ontarians anticipate future family challenges, they may be receptive to initiatives to prevent or mitigate those challenges.  The government should ensure that its public information initiatives about family law are made available and accessible to Ontarians who are still cohabiting in intact relationships, not only to those who have decided to cease cohabiting.

 

III. B. 1. Education


            The severity of the conflict which arises upon relationship break-down is to some extent dependent on the manner in which the parties communicate and address that conflict. Education as prophylaxis for dysfunctional family conflict could conceivably start before the conflict arises, if it were delivered in high school or as a pre-requisite to marriage.[130]  The Ontario secondary school curriculum already includes a course entitled “Healthy Active Living Education.” In this course, students are “given opportunities to refine their decision- making, conflict-resolution, and interpersonal skills, with a view to enhancing their mental health and their relationships with others.”[131]  The government should consider teaching strategies for communication and conflict-resolution in intimate relationships in the context of the “Healthy Active Living Education” in Grade 12, or in another course.  Doing so might enhance Ontarians’ ability to deal with post-relationship conflict in a manner which mitigates rather than exacerbates it.  It could conceivably even increase the chance that intimate relationships remain harmonious and healthy.

 

III. B. 2. Marriage and Cohabitation Contracts


            Individuals entering a marriage or cohabitation are permitted to establish by contract what their financial obligations to each other will be when and if their relationship dissolves.[132]  Doing so can substantially reduce the potential for subsequent conflict and disagreement, and can create clear expectations for the parties.  Justice Québec publicizes information about cohabitation contracts on a website, which includes an explicit recommendation that

People who chose to live in a de facto union should specify how they intend to live as a couple and how they intend to manage their family relationship to avoid disputes and disagreements… because a written document provides more lasting proof than a verbal agreement, it is in your interest to sign a written cohabitation contract with your de facto spouse.[133]

By contrast, the family law section of the Ontario Ministry of the Attorney General does not appear to mention cohabitation or marriage contracts.[134]  The Government should consider expanding the information which it provides about pre-marital and cohabitation contracts.  Potentially, the Ministry’s web site could include an explicit recommendation to create such a contract, or a web-based tool to help parties draft contracts.

            However, it is very difficult for individuals to negotiate about entitlements and obligations which they never expect to become real, insofar as people generally do not enter intimate relationships while contemplating their dissolution.  If the entitlements and obligations do become real, this often does not occur for many years after the contract was initially negotiated.  For these among other reasons, very few Ontarians enter marriage or cohabitation contracts.  It is not clear that amendments to the Ministry web site would substantially change this reality.

 

III. B. 3. Discouraging Earning-Potential Sacrifices: Public Investments in Child Care

 
            As established above, sacrifices in earning potential undertaken for family reasons can lead to economic challenges after relationship break-down. Some such sacrifices are an inevitable and healthy response on the part of Ontarians to their family responsibilities.  However, Ontario might want to discourage the most dramatic form of earning potential sacrifice – extended or permanent departures from the labour force.  To put the point in positive terms, the state may wish to encourage continuing employment and/or educational activities by parents.

            As noted above, parenting is the family responsibility which is most likely to lead Ontarians to make earning-potential sacrifices. Therefore, increasing the supply and affordability of non-parent child care is one way to reduce the need for those sacrifices and thereby reduce the post-separation disruption which they cause.  This is particularly true for mothers. Willem Adema observes that “the development of formal childcare allows female employment to expand further, both in terms of the number of female workers and the hours they engage in paid employment.”[135]  As female labour force participation rates have increased, there has been a commensurate increase in the proportion of non-parental child care.[136]

            However, by comparison to other wealthy countries Canada has made very limited public investments in child care. The OECD found in 2006 that Canada’s investment in early childhood services was equal to only 0.3% of GDP.[137]  This was the lowest figure among 14 OECD countries studied in the report.[138]  This report also noted that only approximately 24% of Canadian children between the ages of 0 and 6 have access to regulated day care.[139]

            Despite repeated electoral promises, there is still no national non-parental child care program. Indeed the most recent substantive federal initiative was the creation of the Canada Child Tax Benefit, which takes the form of a monthly cash payment to families with minor children.[140]  While this initiative may facilitate the purchase of private child care, it does not increase the supply of non-parental child care and provides no incentive to parental labour force participation. It was not intended to be, and does not serve as, a deterrent to sacrifices in earning potential.

            Quebec is the exception to generally low overall public investment in child care. In this province public provision of day care is established and widespread. According to OECD statistics published in 2005, 40% of all of Canada’s childcare capacity is in Quebec despite the fact that only 22% of Canadian children live there.[141]  In 2001, Ontario’s provincial government spent $232 on childcare for every child aged 0-12.  This compares to $980 per child in Quebec, and a national average of $386 per child. However, the provincial government’s recent initiative to provide free full-day kindergarten is a step in the right direction, insofar as this will facilitate labour-force participation by the parents of four- and five-year olds.[142]  State provision of child care reduces the likelihood of parental earning-power sacrifices, which in turn reduces economic challenges in the wake of relationship break-down.  In weighing the costs and benefits of family policies, this fact should be considered.

 

III. B. 4. Discouraging Earning-Potential Sacrifices: Tax Reform

            Feminist scholars have pointed out that some elements of Canada’s tax system disincentivize income-generating labour by individuals who cohabit with others who earn more than they do.  For example, Canadians are now permitted to contribute $5,000 per year into tax-free savings accounts (TFSAs) which offer significant tax savings.  A married individual is permitted to contribute $5,000 per year into his or her own account, plus an additional $5,000 per year into his or her spouse’s account. The higher-earning spouse can do so regardless of whether the other spouse is earning income.  The family can therefore receive the entire $10,000 per year tax shelter benefit despite the fact that only one individual is earning income to make contributions.  An alternative would be to allow individuals to contribute only to their own TFSAs. If this were the case, the TFSA would operate as an incentive to both spouses to earn income.  Only by doing so would the family be able to obtain the full $10,000 per year tax benefit.[143]  Governments should consider restructuring benefits such as TFSA so that they incentivize income-generation by both spouses, and disincentivize earning-power sacrifices.

            Kathleen Lahey argues that the tax system is one contributor to “unrelenting pressure on women to substitute unpaid work for paid work at the margins.”[144]  One source of this pressure which she identifies is “joint tax instruments,” defined as “tax provision[s] that adjus[t] tax liability either upward or downward on the basis of having a spouse or common-law partner.”[145]  For example, the dependent spouse credit reduces tax liability when a taxpayer’s spouse is being supported by the taxpayer.[146]  Lahey argues that that joint tax instruments are disincentives to women’s labour force participation because their benefit is reduced or lost if the spouse with lower earning potential joins the labour force.  Whether this spouse is male or female, the salient point is that joint tax instruments may encourage sacrifices in earning potential, and thereby exacerbate economic problems post-separation. Joint tax instruments have complex costs and benefits, but it should be recognized by law-makers that their disincentive to labour force participation is among their drawbacks.

            Lisa Philipps has also observed that tax law can act as an incentive or disincentive to intra-household transfers of wealth to the lower-earning spouse.[147]  For example, Canadians are now allowed to “split” pension income with their spouses so as to obtain tax benefits.[148]  However, the split may be purely “notional” – legal title to the pension income need not be transferred to the lower-earning spouse.  If income splitting were to be dependent on actual legal transfers, then the economically weaker spouse would thereby be empowered during the relationship.  This could reduce the economic challenges experienced by that spouse after relationship break-down, especially for those who cohabited in a non-marital relationship and are therefore not entitled to statutory property division.[149]  While requiring legal transfers of property would increase the intrusiveness of the tax system, the legislature should consider whether this reform might bring about a more equitable distribution of property within intact relationships, and thereby reduce post-separation economic challenges.

 

III. B. 5. State Compensation of Caregiving


            An alternative to discouraging earning-potential sacrifices is to compensate the individuals who make those sacrifices in order to perform caregiving tasks.  Doing so may lead to them having more savings and economic independence with which to weather the shock of relationship dissolution. Some feminist scholars have argued that the state should compensate caregivers directly.[150]  The Law Commission of Canada’s Beyond Conjugality report proposed consideration of refundable tax credits for caregivers, or direct grants to them.[151]  The Income Tax Act currently allocates tax credits both to parents of minor children and to caregivers for the elderly and disabled.[152]  However other feminists, including Kathleen Lahey, respond that compensating caregiving would simply reinforce traditional gender expectations and push caregivers out of the workforce.[153]

            However, state compensation of caregiving has limited potential as a tool to promote economic independence after relationship breakdown.  It is not clear that tax credits or even direct payments provided to a member of an intact relationship will be preserved for the benefit of that family member, as opposed to becoming part of the general “family finances.”  It might be possible to somehow segregate these funds for the personal benefit of the caregiver should the relationship eventually dissolve, e.g. by adding them to the Canada Pension Plan account of the caregiver.  However doing so would mean that the financial benefit would not be available to the caregiver and his or her family at the time when the caregiving was actually happening.

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