Suzanne AmielProf. Robert Leckey

Family Law SummaryFall 2009

Family Law Summary

Introduction

What is “Family Law”?

R. Leckey, “Families in the Eyes of the Law: Contemporary Challenges and the Grip of the Past”
  • Canadian law has no official definition of “the family”: for lawyers, the family is the aggregation of the relationships, rights, and obligations connecting those individuals who are otherwise seen as forming a family (a circular definition)
  • Family law is traditionally concerned with relations between married spouses and with parents and children
  • Legal rules identifying family relationships and establishing their effects form the background for government programs catering to families
  • Private family law = the rights/obligations created by the law recognizing a familial relationship (ex. marriage, parent-child)
  • Public family law = the government programs aimed at families and that to which each family is entitled
  • Changes to Marriage and Divorce Laws Over Time
  • Gendered nature of marriage has been reduced – the roles of husband and wife are less clearly defined as different, and women’s legal personalities are no longer absorbed into their husbands’ upon marriage
  • Status of marriage as sole legitimate institution for sexual relations/child-rearing has also been diminished – other unmarried couples are recognized and given rights/responsibilities to one another
  • Permanence of marriage has declined as the availability of divorce has increased
  • Marriage is still the foundational concept in the treatment of 2-person committed relationships (same-sex, opposite-sex, cohabitation)  problematic? Features of the marriage model can be obstacles to identifying other relationships (ex. conjugality, cohabitation, on/off character)
  • Parents and Children: dominant discourse for decision-making regarding children = “best interests of the child” is an open-textured concept into which judges have to pour content case by case
  • 3 big factors in recognition of parental status: genetic connection, intention to parent, family stability
  • The natural parentage (2 parent) model forms the basis for all other analogous relationships – perhaps counterproductive to recognizing new forms of family?

  • Note: family law attaches rights and duties to people who do not consent, nor are they at fault. Consent and fault are the two common bases for creating obligations in Western law. Logic of family law is different.

Finding Family Law

1. Federalism: what level of government has jurisdiction to legislate on the family?

  • There is a division of the powers to legislate on the family between federal and provincial governments
  • Federal Government:
  • s. 91(26) CA 1867: Marriage and Divorce
  • Capacity to marry
  • Provincial Governments:
  • s. 92(12) Solemnization of Marriage
  • Formalities required to get married
  • s. 92(13) Property and Civil Rights in the Province
  • Rights/duties of married people
  • Division of property at dissolution
  • Legislation properly within the legislative competence of one level of government can have huge effects on the competence of the other
  • Ex. Federal Divorce Act affects s. 92(13) pretty strongly

2. Sources of Family Law

  • What we think of as family law is a set of relatively new legislative creations (mostly post-1980)
  • The idea that there are a bunch of laws concerning the family that belong together is relatively new
  • Legislatures do not change family law regimes very often – they are generally phrased very broadly. Judicial interpretation has a huge effect on how these laws are applied, and it changes over time.
  • Furthermore, SCC doesn’t rule on family law cases very often; so their decisions are very closely read and interpreted by lower courts
  • Federal Level
  • Civil Marriage Act
  • Divorce Act
  • Provincial Level
  • QC (CVL)
  • Book II CCQ (“The Family”)
  • Ontario (CML)
  • Ontario Family Law Act
  • Children’s Law Reform Act
  • Child and Family Services Act

Four Crucial Oppositions With Which To Analyze Family Law

1. Private v. Public

  • Private family law = rights and duties between private persons
  • Public family law = distributive schemes run by the government that take family relations into account

2. Instrumental v. Symbolic (non-instrumental) reasons for identifying family relationships

3. Formal v. Functional bases for recognizing family relationships

  • Formal = consent-based
  • Functional = fact-based

4. Formal v. Substantive Equality

  • Family law is now largely gender-neutral on its face
  • Is it gender-neutral in the way it functions?
  • Should its formulation reflect the inequality that exists in reality?

I. The Parent-Child Relationship

Part I of the course treats relationships between children and adults who have the legal status of parent or who attract some of the effects of parenthood. Filial relationships take precedence over the relationship between the parents of the child – family law today is largely indifferent as to the civil status of the child’s parents. The filial bond can thus be regarded as largely independent of adult relationships.

A. De JureParent-Child Relationships

De jure parent-child relationships are formally recognized filial relationships. The law recognizes the juridical bond between the parent and the child as such. Regardless of how a parent comes to be designated a legal parent, once established the status of legal parenthood attracts a certain set of effects.

1. Establishment of De Jure Parent-Child Relationships

There are several models by which a relationship of legal parenthood can be established; recognition of legal parentage in contemporary law derives from genetic connection, intention, or relationship with a child’s mother. Establishment of de jure parental status is usually prospective: it usually precedes the carrying-out of parent-like functions.

Adoption

CCQ arts. 543-561, 566-578.1; CFSA ss. 136-139, 146, 149(1), 157, 158, 160(1)

Adoption and the Four Crucial Oppositions

  • Straddles the line between public and private law
  • Engages both instrumental and symbolic concerns
  • Adoption is a formal basis for recognizing a familial relationship (rather than functional)
  • There is no relation until it is created by law
  • Legislation regulating adoption gives full equality to adopted children (as compared to naturally filiated children)

The Purpose of Adoption: Creation/Recognition of a Parent-Child Relationship?

art. 547 CCQ / A person may not be an adopter unless he is at least eighteen years older than the person adopted, except where the person adopted is the child of the spouse of the adopter.

See the way this provision is trying to make adoption more like natural filiation by imitating the age gap between parents and children.

art. 545 CCQ / No person of full age may be adopted except by the persons who stood in loco parentis towards him when he was a minor.
The court, however, may dispense with this requirement in the interest of the person to be adopted.

The parent-child relationship is seen to be most appropriately had with a minor child. N.B. judicial discretion.

What is the purpose of adoption? See this American case for differing views:

In Re Robert Paul (1984) – CML (Court of Appeals, NY)
Facts: 57-year-old gay man tries adopt his 50-year-old male partner in order to gain some form of legal relationship. Issue: Can he adopt his homosexual partner? Holding: No, with dissent.
Reasoning:
Majority (Jasen J.):
  • s. 110 of Domestic Relations Law: adoption is “the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent” basic function of giving legal effect to a parent-child relation
  • Adopted child becomes “natural child” of adoptive parent “adoption imitates nature”
  • Adoption isn’t supposed to be a vehicle with which to imitate marriage – involves sexual intimacy in the parent-child relationship (“utterly repugnant”)
  • Court must respect the intent of the Legislature enacting this law – they did not mean for adoption to be a procedure by which to legitimize an emotional attachment that is devoid of the filial relationship fundamental to adoption
Dissent (Meyer J.):
  • The law does not say that the relationship of parent and child is a condition precedent to adoption  that is the result of the adoption proceeding, it is what it creates
  • The law doesn’t mention anything about the relationship between the adopter and the adoptee prior to the adoption – doesn’t restrict who can adopt who on that basis – not for the Court to read in that intention
  • “It is enough that they are two adults who freely desire the legal status of parent and child”
Ratio: Adoption is a legal proceeding by which a parent-child relationship is created and it is not to be used to create proxy legal relations that do not look like the natural parent-child relation.

Leckey on Re Robert Paul:

  • Differing views of adoption in this case: does adoption create a parent-child relationship (dissent) or legitimize a relationship that exists already (majority)?
  • Application by the plaintiffs is refused by two levels of court on basis that this is not what adoption is for
  • Majority holds a relationship similar to parent-child relationship must exist already (in that it looks like it) for adoption to be granted – but in doing so, they are reading something into the legislation
  • They use a natural law argument to do so
  • Majority is a little panicked by this possibility; they appeal to common sense that of course this gay relationship has nothing to do with parent-child relationship (what about companionship? support?)
  • Dissent refuses to read anything into the legislation: the law doesn’t say one person has to be older than the other, or that the purpose of adoption has to be the creation of a parent-child relationship
  • The adoption process creates a relationship that does not exist before
  • It doesn’t look for a prior parent-child relationship or anything resembling it  it creates it
  • So why look for a prior parent-child relationship between these two plaintiffs?

The Purpose of Adoption: Effacement of the Previous Biological Link?

  • The classical model of adoption makes a clean slate for the child: erases their “illegitimate” past and replaces it with a “legitimate filiation”
  • Connected to historical function of adoption in actually giving children legitimate filiation?

Lori Chambers, Misconceptions: Unmarried Motherhood and the Ontario Children of Unmarried Parents Act, 1921 to 1969, “Such a Program of Legislation: Illegitimacy and Law Reform”
  • The legal designation “illegitimate” (i.e. a child whose parents were not married) entailed punishment and ostracism for both mother and child
  • Under common law, child born to an unmarried mother was the child of nobody  “nullius filius”
  • Could not inherit, cannot have heirs, had no ancestors, was the kin of no-one
  • Little state support of such children until WWI  fears of race suicide, the vitality of the nation, etc., encouraged the government to support illegitimate children (i.e. who would grow up and protect the country)
  • Increasing rhetoric that it was unfair to punish the child for the mistakes of his/her mother (rhetoric of blame of mother and fear of female sexuality continued)  father largely invisible in all of this
  • All acts created to support single-parent families reflected desire to maintain an Anglo-Saxon middle-class model of family life/sexual restraint  aid was contingent on adherence to strict moral standards, not need
  • If given aid, mother became employee of the State – expected to live up to standards, and could be fired (i.e. her child could be taken away)
  • Legitimation Act: retroactive legitimation of children whose parents married subsequent to their birth – decreased burden on the state purse (did not have to provide for these children)
  • Adoption Act: permanent adoption by strangers/kin of illegitimate children  had the function of endowing them with a filiation
  • Children of Unmarried Parents Act: government had a right to remove children from custody and control of parents deemed unfit (for reasons of unmarried status, poverty) – could put them up for adoption without the parents’ consent
  • These Acts were coercive and defined motherhood according to moral criteria – blamed women, and discredited their assertions of who the father was (needed third-party corroboration in order to get state-enforced support from father)

art. 577 CCQ / Adoption confers on the adopted person a filiation which replaces his or her original filiation.
The adopted person ceases to belong to his or her original family, subject to any impediments to marriage or a civil union.

See also art. 578: adoption creates the same rights and obligations to the new family as filiation by blood.

s. 158 CFSA / 158.(2)For all purposes of law, as of the date of the making of an adoption order,
(a) the adopted child becomes the child of the adoptive parent and the adoptive parent becomes the parent of the adopted child; and
(b) the adopted child ceases to be the child of the person who was his or her parent before the adoption order was made and that person ceases to be the parent of the adopted child, except where the person is the spouse of the adoptive parent.

Adoption’s Effacement of the Previous Kinship Ties of the Child:

Droit de la famille – 1704(1993) – CVL (QCA)
Facts: Appellant’s biological mother adopted her when she was two in order to wipe the appellant’s father from her act of birth. Appellant wants to have her act of birth changed so that it recognizes her biological father.
Issue: Can adopted child claim a different status than the one conferred by the adoption order?
Holding: No, with dissent.
Reasoning:
Majority (Moisan J.)
  • art. 627-9 CcQ: adoption erases the biological filiations of the child in favour of the new adoptive filiation has a substitution effect, totally replaces the earlier family
  • Adoption is a legal fiction, a creation of the law: it has nothing to do with biological reality  it is, in fact, the negation of a biological reality in favour of a legal reality
  • The appellant’s suit cannot be granted – it would undo the legal reality that has been created
Dissent (Tyndale J.)
  • In this case, the biological mother adopted her own child – a new filiation was not created and the adopted person did not cease to belong to her original family  art. 627-9 DNA
  • Appellant is not claiming a status that is contrary to her act of birth – she is just trying to add her biological father to her record  she has a right to have a father and should be able to do so notwithstanding articles that barely apply to the case at bar
Ratio: An adoption is a legal fiction that wipes out the previous biological filiation of the child and creates a new filiation with the adoptive family.

***CAUTION: NO LONGER LIVE ISSUE. Based on 1980 Family CCQ.

Leckey on DF – 1704:

  • The fact scenario in this case can never arise again  it is no longer possible to adopt your own child (see art. 543, para. 2)
  • The reasons one might adopt one’s own natural child (when it was legal):
  • To legitimate an illegitimate child (illegitimacy no longer exists)
  • To efface previous parents
  • Are we comfortable with the fact that adoption effaces all previous kinship ties? Majority is very comfortable with adoption as a legal fiction that has these effects.
  • Adoption still has this effect, of course  see art. 577.

Adoption and the Best Interests of the Child

  • Quebec and Ontario regimes are substantively similar – both framed in terms of the best interest of child
  • Contrast this to natural filiation, which is not about the best interest of the child at all.
  • Natural filiation is more about who the legal parent is, and what rights/duties do they have

art. 33 CCQ / Every decision concerning a child shall be taken in light of the child's interests and the respect of his rights.
Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child's age, health, personality and family environment, and to the other aspects of his situation.

Keep this provision in mind – applies to every decision about children in QC, not just adoptions.

art. 543 CCQ / No adoption may take place except in the interest of the child and on the conditions prescribed by law.
No adoption may take place for the purpose of confirming filiation already established by blood.
s. 146(1)
CFSA / 146.(1)The court may make an order for the adoption of a child who is less than sixteen years of age, or is sixteen years of age or more but has not withdrawn from parental control, and,
(a) has been placed for adoption by a society or licensee; or
(b) has been placed for adoption by a person other than a society or licensee and has resided with the applicant for at least two years,
in the child’s best interests, on the application of the person with whom the child is placed.
s. 136(2)
CFSA / (2)Where a person is directed in this Part [Adoption] to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child’s physical, mental and emotional level of development.
3. The child’s cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
6. The child’s relationships by blood or through an adoption order.
7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
8. The child’s views and wishes, if they can be reasonably ascertained.
9. The effects on the child of delay in the disposition of the case.
10. Any other relevant circumstance.

The Negotiation of Equal Claims to a Child and Introduction to Best Interests of Child: