Family Law – 2010; Prof. A. Campbell
PART I - INTRODUCTION
Friday January 8: Introduction (no panel)
Readings:
· Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships
· Robert Leckey, “Families in the Eyes of the Law: Contemporary Challenges and the Grip of the Past.”
· Angela Campbell, “Bountiful Voices” (excerpts)
· Angela Campbell, “In the Name of the Mothers”
What makes family law distinct?
· Distinct type of private relationship: intimacy and proximity
· Maybe we don’t want the state involved because it’s so private
· Less about money (not to be confused with family property law, which is all about $)
· E.g. custody, access, marriage, divorce, filiation
· Issues at stake more personal or emotional
· Unique judicial role in weighing competing interests
· E.g. best interests of the child varies from one judge to the next
· Is this preferable to black letter rules or not?
· Rules are scarce
· Role of the courts is unique
· A.13 CCP disputes are not public, they are ‘in camera’
· Incongruity with individualism
· Does model of individualism fit with family law? What might fit better?
· Influence of policy
Why does the state care about family?
· State wants to shift the cost of supporting children, divorced spouses, elderly parents to private citizens (connects to “indefinite/lifetime” idea of family ties)
· Facilitates executions of social policy
o Tax, immigration, wills, social benefits, criminal law
Two traditional factors characterizing family:
1. Traditional – related by blood (adoption calls this into question)
2. Conjugality (Bountiful, but not Golden Girls)
3. Domesticity (Golden Girls, but not necessarily Bountiful)
Three ways to deal with families legally:
1. Full recognition
2. Non-recognition
3. Non-recognition with criminal sanctions
Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001), p. 1· Main argument: governments should re-evaluate the laws governing adult relationships, tailoring them to the legitimate objectives, using the range of options available
· Governments have broadened their focus beyond marriage to include other marriage-like relationships, but still focus on conjugality
· They should support a full range of close personal relationships among adults
· Also, persons with disabilities develop relationships of support with paid and non-paid caregivers
Proposed methodology for addressing legal regulations of close personal relationships:
1. Are the objectives of the legislation legitimate?
2. If so, are relationships relevant to achieving them?
3. If they are relevant, can individuals themselves choose which relationships should be subject to the law?
4. If relationships are relevant and self-designation is not feasible, is there a better way for governments to include relationships?
Values governments should consider when framing policies that recognize and support adult relationships:
· Equality
o Both within individual relationships and between different types of relationships
· Autonomy
o People should be able to freely choose their personal relationships
o State should remain neutral with regard to the form and status of relationships and not accord one form of relationship more benefits or legal support than others
· Personal security
o State should try to ensure physical security within a relationship and economic security outside of it
· Privacy
o State shouldn’t establish legal rules that require intrusive examinations into or forced disclosures of intimate details
o Must yield to some extent to state’s interest in prosecuting and preventing crime, stopping violence and exploitation, etc.
· Religious Freedom
o State should not take sides in religious matters
· Coherence
o Laws must have clear objectives and be tailored to achieving them
o Thus, should avoid having marital status be a factor in legal regimes that don’t relate to marriage
o E.g. Employment Insurance Act has special controls to make sure that bosses don’t set up sham employments to benefit family members, but this should be expanded to non-family members, as defined, that a boss might also want to fraudulently help out
o E.g. Evidence Act shouldn’t just prevent spouses from testifying against each other
o E.g. Income Tax Act
· Efficiency
o Laws should be effective: should get benefits to intended recipients without undue costs, delays, etc.
Four legal models that can be used to regulate personal relationships:
1. Private law model
o Contractual ordering with instruments such as contracts and wills, which do not bind third parties or governments
o Typically invisible from a public-law perspective (Leckey)
o Functions best when parties are relatively equal in knowledge and power and access to legal advice (Leckey)
o Operates by default when governments do not form a legal framework
o Pros:
§ Consistent with individual autonomy (Leckey)
o Cons:
§ Very burdensome and costly, and gives advantage to party with greater resources
§ May be less adaptable than legislative regimes (e.g. legislative regimes provide a means to vary support obligations when circumstances change; contracts may not) (Leckey)
§ Requires knowledge (from class)
§ No public benefits (from class)
§ No recognition (from class)
2. Ascription
o Government imposes a set of obligations on people in conjugal relationships that are presumed to correspond to the expectations of the majortity of people involved in such relationships
o Pros:
§ Prevents exploitation in some cases
§ Saves the parties the trouble of devising rights and duties from scratch (Leckey)
§ Can make explicit exceptions that may be tacit and inarticulate during the relationship (Leckey)
o Cons:
§ Blunt policy tool, treating all conjugal relationships alike
§ Both over- and under-inclusive (Leckey)
§ Infringes autonomy, as people are not always aware that they can opt out
3. Registration
o People voluntarily register their relationships
o Pros:
§ Provides an orderly framework in which people can express commitment to one another, receive public recognition and support, and voluntarily assume a range of legal rights and obligations
§ Can provide for an orderly resolution of affairs if relationship breaks down
§ Allow for the recognition of a broader range of caring and supportive relationships, both conjugal and non-conjugal
§ May have a symbolic value in state recognition (Leckey)
o Cons:
§ Ineffective when parties are very different in power and influence (Leckey)
4. Marriage
o Two people enter by consent into this status in a formal ceremony
o Only death of a spouse or a judgment of dissolution terminates marriage
Designing a registration scheme:
· Shouldn’t be requirements about conjugality, cohabitation
· Should provide options to registrants – models of predetermined rights and responsibilities
· Could replace marriage as a legal institution (religious marriages would still exist, but without legal consequences)
o However, most Canadians would probably be against this
Marriage
· State’s interest in marriage isn’t about procreation, gender roles, or the raising of children
· It’s about providing an orderly framework in which people can express commitment to each other, receive public recognition, and assume legal rights and obligations
Robert Leckey, Families in the Eyes of the Law: Contemporary Challenges and the Grip of the Past (2009), p. 7
· Main argument: in expanding categories or making new categories in the realm of intimate adult relationships outside of marriage or parent-child relationships, the courts and legislatures are caught in “the grip of the past” – they assimilate new uses to old (often binary) categories
· The development of social practices and family relationships have outpaced the legal framework for families
· [Essentially, Leckey attacks a lot of the short cuts that governments take as being inaccurate and poorly calibrated to meeting the desired goal. But is it really possible to eliminate shortcuts?]
· [See Cossman and Ryder – same idea]
· Governments should be more attuned rather to WHY they are making the law and whether it meets the desired objectives
· Four oppositions:
o Public law – private law
o Functional (e.g. marriage as a means for imposing duties of mutual support) – symbolic (e.g. marriage ceremony)
o Formal (e.g. marriage) – functional (e.g. marriage-like situations)
o Formal equality – substantive equality
§ Formal equality doesn’t necessarily bring substantive equality
· Canadian law has no definition of “the family” and no singular “family law”
· Legislation should pay attention, for example, to whether the objective of the law is instrumental or symbolic (e.g. same-sex marriage)
Historical evolution of marriage
· Has become formally gender-neutral and equal
o However, in practice, significant gender differences persist
o Often when a child is born, women will play a greater role in raising it – this means that the woman will likely get custody upon separation
· Has lost its status as the sole legitimate institution for sexual relations and child rearing – laws signalling disapproval with unmarried cohabitation have disappeared
· Has become less permanent, as divorce has become easier (and also more equitable for women)
Issues in marriage
· Divorce
o Upon divorce, provincial regimes all hold that each party gets an equal sharing of the increase of the assets during the marriage, though they differ in the basket of assets concerned
o In CML provinces, spouses can contract to alter the rules of matrimonial property that apply to them; in Quebec, spouses cannot exempt themselves from the rules of family patrimony
· Intersection of civil and religious marriage
o Use of “secular” private contracting in the family law sphere by Christians attracts little attention, even when the result is that one party gets less than she would under the default scheme
o But when such contracting is informed by religious principles or in religious mediation or arbitration forums, there is often uproar (Sharia law in Ontario)
o Arguably, prohibiting religious law in these circumstances may end up driving it underground
o Also, religious arbitration forums likely aren’t the main reason for woman to claim and receive less than their fair share in divorce proceedings
Unmarried couples
· Ascription applied to unmarried couples isn’t about recognizing their intrinsic worth, but rather palliating the vulnerability of women who rely on men
· Analogizing married and unmarried couples for the assignment of duties can cause difficulties and surprises:
o Unmarried couples have no marker of their relationship, so the legislatures have to institute a proxy (e.g. three years cohabitation) – this is much more likely to cause disputes over evidence than a formal marker
o Marriage brings a legal status that persists even when the parties have separated (until there is a formal dissolution) – cohabitation does not, so one partner will suddenly lose her entitlement to the other one’s pension after separation
o Alberta recognizes non-conjugal cohabitation relationships (to avoid extending particular recognition to same-sex couples) à this is good in that it mitigates an arbitrary grip on conjugality as the key factor (Cossman and Ryder), but bad in that it risks surprising individuals who don’t see themselves as assuming obligations toward their roommate
o Quebec provides “a glaring contrast” to the CML provinces – de fact spouses owe each other nothing
§ Strange, because Quebec has a much higher rate of unmarried cohabitation than the other provinces, and these relationships are three and a half times more likely to break down than marriage
· Unmarried partners DON’T have the right to have the matrimonial property split, however (Nova Scotia v. Walsh)
· Instead, they have to make case-by-case claims in unjust enrichment, which are difficult to prove
· In addition to the ascription model, several provinces have registration options for partners who don’t want to (or can’t) marry
· Quebec has the civil union, which is even more solemnized than a simple registration scheme
Same-sex couples
· M. v. H. à SCC found that a spousal support regime that applied to unmarried opposite-sex couples, but not same-sex couples, violated s. 15
o Problematic: court talked about recognition, but in the context of an ascription regime
o “In the Court’s view, ascribing duties to unmarried couples without their consent upheld their dignity and enhanced their self-worth”
· Same-sex couples may have been surprised to learn that they were suddenly “spouses” for the purposes of various redistributive programs
o Can also result in reduced social benefits for lower-income same-sex couples
· Several years later, issue turned to same-sex marriage, and Parliament passed legislation legalizing it
· Same-sex couples often have the same issues of economic dependency as opposite-sex couples, and lesbian couples may have it even worse, since it may be that neither of them are in the better-paid category
Form and function with regard to marriage
· Children (p. 24ff)
o Although Canadian legislatures don’t distinguish between married and unmarried parents, the children of unmarried parents will often be disadvantaged
o E.g. because one parent could have exclusive possession of the matrimonial home
· Marriage is still a privileged point of reference (just look at how important marriage was in the same-sex debate)
· By assimilating marriage-like relationships together with marriage (a “logic of semblance” [Bottomley and Wong]), courts may be abdicating a closer examination of the needs and vulnerabilities specific to these non-marriage relationships
o Makes it harder for legislatures to assess non-conjugal relationships
o Likewise non-cohabiting relationships
o Marriage is an all-or-nothing deal (all rights and obligations attach at once), so marriage proxies typically take the same approach, which makes little sense – better to have an incremental approach
§ E.g. couples cohabiting for less than three years are invisible to the law; couples cohabiting for three years and a day suddenly come into view
o Unmarried couples aged 25-29 have different needs than unmarried couples aged 60-64
· Two recommendations:
o Unmarried parents with custody of children should be able to get an order for temporary possession of the family home, regardless of which partner owns or rents it
o Quebec should provide an obligation of support between de facto spouses who have a child together
· Both recommendations are instrumental (seek to palliate vulnerability) and functional – neither aims at symbolic validation of the worth of unmarried couples or tries to assimilate the relationship into marriage – would be relatively tailored, since it only affects unmarried couples with underage children