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 and the Canadian Charter of Rights and Freedoms. 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. 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. In 2006, Ontario’s CMAs populations ranged from 122,000 people in Thunder Bay to over 5.5 million in Toronto. 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. 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.
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. Over half of immigrants come to Ontario, although this may be declining.
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. 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. 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. Sixty percent of Aboriginal people in Canada live off-reserve.
For Aboriginal peoples in Ontario the family also encompasses an extended network of grandparents, aunts, uncles and cousins. Traditionally the family “is the all-encompassing mediator between the individual and the social, economic and political spheres of the larger society”. Disruption of this family structure means that the individual “is set adrift”. This disruption has occurred since colonization and continues today.
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”. Approximately 46% of Toronto’s residents are members of “visible minority” communities.
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). It should be noted, however, that in Toronto, for example, almost the entire workforce in Ontario speaks English in the workplace. 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. 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. 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, has resulted in a trend that family units have fewer children and have children at a later age, so that child-raising, a career and, in some cases, the care for elderly relatives have to take place simultaneously. 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. 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.
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. 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. However, in Canada’s city infrastructure children often have to rely on parents and other adults for mobility.
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. 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, with 192,000 families without children and 144,000 families with children. In 2006 there were 17,000 same sex couples (3,700 married couples and over 13,000 common law couples). 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.
Because of separation and divorce there is a significant number of lone-parent families. In 2006 there were over 540,000 lone parent families in Ontario. Most lone parents after a divorce in Canada are women, athough 10 to 12% of lone parents are men. There has been an increase in lone father families in Canada.
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, 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. 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, based on the factual situation of persons having formed close ties, economically and personally. 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. In practice this can raise complex issues.
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 with the more independent role many children have in families. However, the protection of a child’s well-being can make it difficult for parents and the system to make a child part of a judicial process in which difficult choices must be made. In more traditional families the child’s voice may not be considered a factor which should be taken into account.
Domestic violence remains a serious concern, despite many efforts to address it, and must be taken into account in considering the responses of the legal system to the breakdown of families across the income and educational spectrums. It can be the reason for family breakdown, while in some cases the family continues with a constant threat of domestic violence and its impact on the victim, usually women, and children. It can continue after the family separates. For victims it can be extremely painful to talk about their experiences. This can be even more so in cultures with dominant patriarchal structures.
One of the biggest challenges in re-imagining the family legal system is the dissonance between the system and the reality of families in crisis. In practice, families do not only require legal solutions but also a modus for a workable relationship during separation and divorce and post-separation and divorce, especially in cases involving children. We can only summarize the research on family life and divorce and separation in Ontario and Canada more broadly; however, this background is crucial to understanding why our recommendations reflect the need for expertise other than legal expertise in responding to family breakdown.
C. The Impact of Family Breakdown
It is estimated that 40% of all marriages or relationships in Canada end in a break-up. It is hard to say how many family break-ups there are in Ontario, since the breakup of even long-term common law relationships may not be the subject of formal proceedings. In 2006 the number of Ontarians aged 15 years or over who had gone through a formal divorce was 679,900. This is nearly 7% of the population aged 15 and over.
Although divorce no longer carries the stigma in society that it once did and is facilitated by legal procedures, a family breakdown can be very disruptive. Currie writes that in Canada about 33% of persons in a family breakdown said this was severely disruptive for their lives, while 50% said it was somewhat disruptive. 
Research shows that divorce generally involves a period of stress, instability, loneliness and hurt feelings and often hostility. This is even more so for families with children. There is an increased risk of mental health and physical problems during a marital conflict. After a divorce and separation this is even more prevalent. Conflicts between parents also have a negative effect on children. A divorce can affect the wider family members, for example grandparents when one of the parents prevents contact.
While the focus tends to be on the negative effects of the separation or divorce, it must be remembered that continuing to maintain the family unit may have worse consequences. For instance, Ambert points out that divorces which end inter-parental conflict may have positive consequences for children. However, divorces in low-conflict situations can have a strong negative effect on children. Some relationships which were non-conflictual during a marriage can result in very acrimonious divorces which can have negative outcomes for children. Research shows, however, that there is less likely to be high conflict on divorce than in the past.
The long term consequences of a divorce for children are hard to predict and depend on the individual situation. For example, a custodial mother’s remarriage can have a positive effect for children, because of finances and the well-being of the mother. In general, children benefit when their non-resident father remains involved in their lives as an active parent.
Persons undergoing divorce and separation can face many challenges not only of a legal and financial nature, but also those related to safety, health and general well-being. These challenges can be, and are often, interconnected. They can include other family law problems involving children (such as child apprehension or child abduction), financial problems, consumer debt, employment and social assistance. The seriousness of the related civil justice problems were seen as extremely or very important to solve by 81% per cent of respondents in Currie’s study.
Many problems after a family breakdown are related to economic consequences. As Semple points out, a divorce means that the cohabitation’s economies of scale are suddenly lost. Since many Canadian families are economically vulnerable because of an increasing high ratio of household debt to income, a family breakdown can have a severe impact. Factors such as the availability of daycare can affect the ability of the custodial parent to work outside the home. While this may, in particular, be significant for women even when the family is intact, it becomes more so for single families which are most often headed by women.
The economic and personal consequences of a family break-up can, in general, be different for men and women. This is related to the differences between men’s and women’s labour participation and care for family members, including after a separation or divorce. The Vanier Institute reports that of all working persons in Canada, female lone-parents between 25 and 44 years of age work on average the longest hours: nearly 11 hours of paid and unpaid work per day over a 7-day week. A 2011 report of Statistics Canada states that among family types, lone-parent families with children (the vast majority headed by mothers) had the highest debt-to-income ratio. In 2002, 35% of all single-mother families in Canada lived in dire poverty. However, the economic situation of many single parent families may have improved more recently.
The financial situation of lone parents can have a significant impact on children. According to Ambert, many of the consequences of a divorce, in particular for children, are related to poverty rather than to the divorce. Loneliness, bullying, school avoidance and delinquency can be related to a new housing situation due to poverty after the divorce and a number of stressors for parents, which make them less available to children. Especially for young children poverty can have long term effects on cognitive and verbal development.
Family breakdown can exacerbate vulnerability. Persons with a recent immigration background can face immigration-related problems such as a fear of being deported or pressures from the community to stay in the marriage. Persons with a disability can face isolation and difficulties accessing services and communicating. Among lone parent families, mothers belonging to minority groups who are racialized and disadvantaged are particularly vulnerable. They may, for example, not be able to form new or stable unions because of a shortage of available men in their community. While for many lone parents it is increasingly difficult to find adequate housing, some groups such as immigrant women and First Nations persons can have particular problems in this respect.
While the family legal system cannot address all the consequences of separation and divorce, for an effective and responsive family justice system, these multiple consequences must be taken into account. For those responsible for the system to plan ahead, it is important that family life in Ontario and Canada remains documented. Unfortunately, “because of the changing nature of relationships and the complications of definitions”, Statistics Canada will no longer collect and break down numbers on annual marriage and divorce rates. The documentation of changing family structures will thus rely on other disparate sources that do not necessarily provide a comparison over time.
The above challenges require a family justice system that in its decisions and processes:
Is flexible with respect to the right to family life in its many varieties, but ensures that family issues are dealt with in the context of Canadian law, based on non-discrimination, equality before the law and the child’s best interests;
Gives victims of domestic violence and child abuse access to safety through mechanisms for early detection and immediate, adequate responses; and
Takes into account the interconnection between legal and other family problems.
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