A.    The Family as a Reflection of Ontario Society

It is not possible to appreciate the diversity of the Ontario family without understanding the diversity of Ontario’s population generally. Among other developments, for example, changes in immigration patterns have led to changes in the ethnic and religious make-up of the province. While women in Canada have increasingly gained more social and economic rights ove the past two decades (more on this in the next section), the beliefs of some groups may appear to challenge the commitment to equality between men and women that has been recognized in the Ontario Human Rights Code[23] and the Canadian Charter of Rights and Freedoms.[24] These trends are not new, but they play a bigger role than in the past.

Ontario has reversed the proportion of its population living in rural and urban areas over the past 150 years. In 1851, 86% of the population lived in rural areas; by 2006, 85% lived in urban centres.[25] Urban areas vary greatly in size. Statistics Canada uses a measure called “city metropolitan areas” (CMA) which encompasses more than a city itself might be.[26] In 2006, Ontario’s CMAs populations ranged from 122,000 people in Thunder Bay[27] to over 5.5 million in Toronto.[28] While people may feel greater privacy living in a large or even small city, they may also be more isolated. In some ways, they may have easier access to resources because there are more resources available in larger centres; at the same time, in a very large centre, it may take as long by public transportation to reach a resource as it would take someone in a rural area who must travel to a larger centre.

Ontario’s population is aging. Family issues affect individuals regardless of age: older partners separate and divorce; there may be domestic violence in the relationship; there may be economic and cultural issues. For older partners there may also be specific kinds of family legal issues, such as abuse of parents by their grown children; or the obligations of children towards their elderly parents.[29] According to Portrait of Seniors in Canada, in the approximately 25 years between 1981 and 2005, the proportion of seniors in the population increased from less than 10% to over 13%. Portrait of Seniors in Canada predicts that the number of seniors will more than double by 2036 to nearly 10 million people or to nearly a quarter of the population.[30]

One of the most significant demographic developments in Ontario has been the change in immigration patterns and the resulting ethnic and religious makeup of the province, particularly in larger urban centres. Well over 60% of the country’s population growth occurs through immigration.[31] Over half of immigrants come to Ontario,[32] although this may be declining.[33]

The Protestant and Catholic religions remain the predominant religions in Ontario, with nearly 35% of people in each category. Just over 3% of the population is Muslim and about 5% are “other Christians” or Christian Orthodox.[34] While popular discourse may focus on differentiating Muslims or Jews, for example, from Christian denominations, there is a significant difference among Christian adherents in their views of family life, as is the case with other religions.

Aboriginal people constitute 2% of Ontario’s population.[35] The 2006 census shows that the Aboriginal population is much younger than that of the non-Aboriginal population, with larger percentages of young children compared to the non-Aboriginal population. Although over half of children 14 and under live with both parents, Aboriginal children in Canada (figures are not available for Ontario alone) are more likely to live in lone-parent households, more likely with the mother, and more likely with a grandparent, but also more likely to live in multiple-family households, than are children in non-Aboriginal households.[36] Sixty percent of Aboriginal people in Canada live off-reserve.[37]

For Aboriginal peoples in Ontario the family also encompasses an extended network of grandparents, aunts, uncles and cousins.[38]  Traditionally the family “is the all-encompassing mediator between the individual and the social, economic and political spheres of the larger society”.[39] Disruption of this family structure means that the individual “is set adrift”.[40] This disruption has occurred since colonization and continues today.[41]

Over 20% of Ontario’s residents may be described as “visible minorities”, to use Statistics Canada’s language, comprising over 2.7 million people; over 6% are South Asian, nearly 5% Chinese and nearly 4% are “Black”.[42] Approximately 46% of Toronto’s residents are members of “visible minority” communities.[43]

Although not entirely indicative of the use of language outside the home, data show that nearly 10 million people in Ontario speak English at home, nearly 290,000 speak French and nearly two million people speak a “non-official language” (about 240,000 speak English and a non-official language).[44] It should be noted, however, that in Toronto, for example, almost the entire workforce in Ontario speaks English in the workplace.[45] The differences in these data make it difficult to assess the cross-over from the use of English or French in the workplace and the capacity to use either official language in the family legal system.

These are some of the realities of pluralism or diversity in Ontario that need to be reflected in the family system. We recognize, however, that the system will never have the capacity to respond to all differences; nevertheless, where differences may play major role in creating or resolving family disputes they need to be taken into account.

B.    The Evolution of the Family

What constitutes “the family” can depend on societal context, culture and religion, and on individual living arrangements. In Ontario’s pluralist society, persons may have very different notions of “family”.

The public face of the Ontario family is very different from that of fifty years ago and different from that of even twenty years ago. Jurisprudence has confirmed legal recognition of some of these changes, in particular the same-sex family.[46]  Other changes in the configuration of the family have resulted from the increased pluralism of the Ontario population discussed above. For example, in certain communities the extended family has become less frequent, as grown children move across Canada away from their parents, while in some communities of more recent immigrants the extended family may be commonplace. In this section, we provide a brief overview of the diversity in current families in Canada and Ontario.

Family life in Canada and Ontario has changed and traditional role patterns of men and women have shifted. Men are no longer the main income generators.[47] Equal access to education has given women increased access to all segments of the work force and the ability to build a career. They are therefore financially less dependent on their spouse or partner. The increased economic participation of women, among other factors,[48] has resulted in a trend that family units have fewer children and have children at a later age,[49] so that child-raising, a career and, in some cases, the care for elderly relatives have to take place simultaneously.[50] The higher incidence of working mothers and the increased role that modern fathers play in parenting may lead to a gradual re-orientation of custody and access arrangements.[51] The mobility of family members, whether within Ontario, or across Canada, or even internationally, may also raise custody and access challenges. We should remember, however, that these general patterns may differ among particular communities that favour larger families or may expect women to focus on the home and raising of a family.

Despite shifting patterns within families, there remain some differences in the roles of men and women, in particular in families with children. For example, although many mothers work, they work part-time more often than fathers, often to care for the children. Thirty-two per cent of mothers work part-time.[52]

The position of children in families has also changed. Modern family life has made children more independent in some ways, but more dependent on their parents in other ways. Families spend less time together than before because of work pressures.[53] Modern technology has given children increased access to independent networks of friends and family, including non-residential parents after a separation and divorce, and to online services.[54] However, in Canada’s city infrastructure children often have to rely on parents and other adults for mobility.[55]

According to Statistics Canada, in 2006 there were upwards of four million families in Ontario in 2006. Most of these families consist of married couples and a majority consists of couples with children.[56] The traditional heterosexual marriage is no longer the only or dominant way persons may form an economic or social unit, however. Common law families make up a significant number of families,[57] with 192,000 families without children and 144,000 families with children.[58]  In 2006 there were 17,000 same sex couples (3,700 married couples and over 13,000 common law couples).[59] Additionally, reproductive technologies, adoption and remarriages after a divorce mean that children can have ties with non-biological (social) parents and biological parents or, in some cases, have very little to no contact with biological parents.[60]

Because of separation and divorce there is a significant number of lone-parent families.[61] In 2006 there were over 540,000 lone parent families in Ontario.[62] Most lone parents after a divorce in Canada are women, athough 10 to 12% of lone parents are men.[63] There has been an increase in lone father families in Canada.[64]

Some of the changes in family life have affected legal decisions about the family on breakdown. Changes in the law, in the make-up of the family, the increasing equality of women, reproductive technologies and, added to this, the growing pluralism of Ontario society have all had their impact on claims on the family system and its capacity to address family disputes.

The system must recognize that the changes with respect to family life are not the same for all communities in Ontarian society. For example, persons with certain religious convictions, persons in smaller communities, Aboriginal persons,[65] and persons who emigrated from more traditional societies may perceive “the family” in a different way, compared to the “mainstream” or predominant way. Traditional notions about gender roles, extended family ties, divorce or parenting may prevail. However, families from more traditional societies may adapt different attitudes under the influence of a multi-cultural environment, in particular in urban centres.[66] While recognizing the diversity of family life, the legal system has an obligation to observe mainstream expectations – both norms and human rights and constitutional requirements – about matters such as sex equality.

Thus in a complex, diverse and sometimes very painful context the family justice system in Ontario will need to develop its responses to challenges arising from these changes in society and family structure, for example:

  • Although economic dependencies between men and women have decreased, there still are income differentials. In certain cultures women may not have had an income generating role or developed the skills to access the labour market. This may impact the calculation of spousal and child support.

  • Familial ties and even parental ties can be hard to determine when family life is diverse. Out of the diversity of family life a more pragmatic legal concept of “family” or “family life” has developed in family law in developed countries,[67] based on the factual situation of persons having formed close ties, economically and personally.[68] Where children are involved, this includes the assumed emotional ties between (biological and non-biological) parents and child, or close relatives such as grandparents and a child.[69] In practice this can raise complex issues.[70]

  • Families from societies with traditional notions about family property and the position of the child may seek community dispute resolution methods outside the formal system, which could disadvantage women.

  • Giving the child a voice in custody and access is compatible wit