The Evolution of the Family in Canada

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The Evolution of the Family in Canada

• Nicholas BalaProfessor, Faculty of LawQueens
  University
• bala_at_queensu.ca
• Queens Mini U
• May 24, 2009
• Mac Corry D214

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Themes Topics

• Family law reflects values beliefs of society
• -gtenormous changes in family behaviours values
  in Canada in past 50 years
• -gt enormous changes in law
• Topics
• Common law marriage
• Same-sex marriage
• Polygamy
• Changes in concept of parenthood
• Canadian definition of family in an international
  and historical context
• -gt more functional, less moralistic, more
  egalitarian

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Questions for consideration

• Who thinks that the law should treat unmarried
  long term opposite sex partners the same as
  married?
• Who thinks that two people of the same sex should
  be permitted to marry?
• Who thinks that 1 man should be permitted to
  marry more than 1 wife (polygamy)?

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Historical ContextMeaning of Marriage Has Not
Been Static

• The Old Testament of Bible
• polygamy was widely accepted (Genesis)
• homosexual acts condemned
• The New Testament
• does not explicitly reject polygamy
• Christian Church gradually rejected polygamy

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Religious Common Law Heritage

• the husband and wife are one person in law the
  very being or legal existence of the woman is
  suspended during the marriage and consolidated
  into that of the husband.
• Blackstone (1756)
• Marriage, as understood in Christendom is
  defined as the voluntary union for life of one
  man and one woman to the exclusion of all
  others.
• Lord Penzance, Hyde v Hyde (1866)

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History of Family Law 1850 - 1968

• Centrality of marriage
• No or limited divorce grounds (1857 to 1968)
• No rights outside of marriage
• Homosexuality was a crime
• Stigma and limited rights of illegitimate child
• Defined gender roles husband wife
• Explicit double standard for divorce until 1925
• presumption of maternal custody
• Unless mother morally unfit
• only innocent wife (no adultery) could get
  support
• no property rights to married women if divorce
• Murdoch 1975
• Marriage as a procreative union
• consummation requirement
• no marital rape until 1983
• adultery primary family law concept until 1968

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Change in marriage 1900-2009

• Dramatic decline in birth rate from 1900 to 2009
  (about 6.0 to under 2.0 children per woman)
  (birth control)
• More social economic support for single parents
  (Moms)
• Dramatic increase in labour force participation
  of women ( relatively few housewives) with
  housework being much less demanding (washing
  machines, frozen food, vacuum cleaners etc.)
• Fathers becoming more involved in child care
  housework (esp. 1970 2009), but on average
  still do less than Moms at home (and have higher
  incomes)

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Family Life Family Law 1968 - 2009

• Changes in family life
• Later marriage
• Lower birth rate smaller families
• More women in labour force
• usually earning less than men family roles
• Decline in role of morality in family law
• Liberalization of divorce more divorces
• End of illegitimacy more single parents
• Growing acceptance of non-marital relationships

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Older age at first marriage
Source Statistics Canada, Catalogue no.
84-212-XPB and Health Statistics Division.
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1 in 3 marriages end in divorce
Sources Statistics Canada, Catalogue nos.
82-003-XPB and 84-213-XPB and Health Statistics
Division.
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Formal gender equality in marriage
differentiating roles in practice

• Marriage as partnership of equals
• Equitable division of property
• Marriage contracts
• Either spouse may seek support
• Awarded when career sacrifice wealthy partner
• Reality that relatively few wives get, almost
  never men
• Legal priority to child support
• Tender years doctrine (Mom favoured) replaced by
  best interests of child
• increasing role of fathers when parents together
• rise of joint custody
• need to recognize role of primary caregiver

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Unmarried cohabitation From Living in Sin

• Until late 1970s
• Social opprobrium for living in sin
• Stigma of illegitimacy to any children
• No legal recognition
• Women suffer
• Property claims based on recognition of
  contribution
  - Pettkus v Becker SCC 1980
• Spousal status for limited statutory purposes
• Starting in 1972 in BC for spousal support
• Ontario Family Law Reform Act (1978)
• 3years cohabitation or child born
• SCC required equality with married for some
  purposes (claim after m.v.a.)(Miron v
  Trudel,1995)

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to marriage lite

• For many legal purposes, unmarried opposite sex
  partners equivalent to married, though
  definitions vary
• Many federal purposes 1 year
• Some Ontario purposes, 3 years or a child
• Some Ontario purposes eg possession of home -gt no
  rights
• Walsh v Bona SCC 2002
• Choice not to marry means no necessary to have
  property rights
• Who chooses? Do partners agree?
• Does perception change over time?
• Women suffer
• Still differences for some purposes in most
  provinces
• Man Sask give most recognition
• Que the least Charter challenge e.g. for
  spousal support?
• Reforms reflect
• Changed social attitudes
• Protection of women

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Change in family structure
Source 2001 and 2006 Censuses, Statistics Canada
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Common-law families Québec and the North
Source Statistics Canada, census of population,
2006.
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Same-sex marriage
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(No Transcript)
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Same-sex Relationships

• Between 1 3 of adult population in Canada is
  involved in a homosexual relationship
• Much higher (10 - 20) have engaged in at
  least one homosexual act
• Until 1969 sodomy was a crime
• Much discrimination against gays lesbians
• Violence (gay bashing)
• Starting in 1970s laws enacted to prevent
  discrimination based on sexual orientation for
  such purposes as employment
• Slow change in social attitudes
• Today TV shows, movies etc. gay positive, but
  still discrimination and negative attitudes, esp.
  among older Canadians, rural, Alberta

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Litigation - initial claims fail

• 1993 Layland v. Ontario (Ont. Div. Ct.)
• Marriage is intended to encourage procreation
• Denial of marriage to same-sex partners not
  violation of Charter
• 1995 Egan v. Canada (SCC)
• Marriage is by nature heterosexual. It would be
  possible to define marriage to include
  homosexual couples, but this would not change the
  biological and social realities that underlie the
  traditional marriage.
• The heterosexual family unit is the social
  unit that uniquely has the capacity to procreate
  children and generally cares for their
  upbringing, and as such warrants support by
  Parliament to meet its needs.

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Same-sex partners entitled to rights of
opposite-sex common law couples

• 1999 M. v. H. (SCC)
• Statutory definition (Ont.) of spouse
  restricted to opposite sex common law couples for
  purposes of spousal support violates Charter s.
  15 and is discrimnatory
• Spousal support law intended to protect long-term
  intimate relationships not procreation
• The human dignity of individuals in same-sex
  relationships is violated by the impugned
  legislation.

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Legislative response to M.v H.

• Canada, Ontario most provinces enacted statutes
  extending rights and obligations of common law
  opposite sex partners to same sex partners.
• Modernization of Benefits and Obligations Act
  (2001, Canada)
• For greater certainty, the amendments made by
  this Act do not affect the meaning of the word
  marriage the lawful union of one man and one
  woman to the exclusion of all others.
• Nova Scotia, Quebec Manitoba Established legal
  status of registered domestic partnership giving
  many rights obligations for same or opposite
  sex conjugal relationships who register (but not
  all rights of marriage). (civil union)

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MARRIAGE CASES Halpern v. Canada (Ont. CA)

• Ont. C.A., June 10, 2003
• Constitutional definition of marriage not
  frozen in time in 1866
• Definition of 1866 offends Charter of Rights s.15
  
• Discrimination based on sexual orientation
• Exclusion of same-sex relationships denies
  persons in same-sex relationships the fundamental
  choice to marry

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MARRIAGE CASES Halpern v. Canada (Ont. CA)

• Marriage is about more than rights and
  obligations it is a fundamental social
  institution
• Objective of marriage
  Procreation is not the essential
  objective of marriage
• lesbians increasingly having children by
  artificial insemination adoption (also gays)
• Many married couples are childless by choice

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Halpern v. Canada (Ont. CA)

• We fail to see how the encouragement of
  procreation and child-rearing is a pressing and
  substantial objective of maintaining marriage as
  an exclusively heterosexual institution.
  Heterosexual married couples will not stop having
  or raising children because same-sex couples are
  permitted to marry.

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Same-sex parenting

• Social science literature research
• children who are raised by lesbian partners have
  similar outcomes to children raised by
  opposite-sex parents.
• no significant differences emotional or cognitive
  developmental outcomes
• children raised by same-sex couples have more
  liberal attitudes
• In 2000 in Bubis v. Jones (2000,Ont. Sup. Ct.),
  the judge stated heterosexual parenting is
  not better than lesbian parentingjust
  different.

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Were a traditional gay couple - we dont have
kids.
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Halpern v. Canada (Ont. CA)

• Court remedy
• Court reformulated definition of marriage as
  voluntary union for life of two persons to the
  exclusion of all others
• Gays lesbians in Canada began to marry after
  decision in June 2003

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The Two Michaels Leschner StarkAmong
Canadas 1st gay marriages
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Also some religious celebrants
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FEDERAL OPTIONS - June 2003after Ontario Court
of Appeal decision in Halpern v Canada

• Appeal to Supreme Court of Canada?
• Invoke the Notwithstanding Clause?
• Enact law to recognize?

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Intense Controversy after Halpern

• VS.

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The Political Climate After Halpern

• Intense lobbying by religious groups
  vs. same sex marriage supporters
  
• Some religious groups supported same-sex marriage
• Liberal party split, but most MPs supported the
  law
• Most opposition from Conservatives
• Reference to SCC (stalling tactic)
• to be sure that federal Parliament can enact such
  a law
• largely stalling tactic (but perhaps wise)
• Prime Minister Paul Martin reluctant supporter
• it is a matter of rights
• criticized by his Church (R.C.)

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The SCC Reference

• Argued in Fall 2004, decided Dec. 2004
• 18 intervenors religious civil liberties
  groups
• SCC says that federal govt may enact same-sex
  marriage law,
• religious celebrants (e.g. priests) cannot be
  required to perform same-sex marriages
• SCC declined to answer political question of
  whether Charter required same-sex marriage

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FEDERAL BILL (C-38)

• Civil Marriage Act (Bill C-38) introduced Feb.
  2005
• Government supported
• Free vote in Parliament
• Marriage is the lawful union of 2 persons to the
  exclusion of all others.
• Nothing in this Act affects the freedom of
  officials of religious groups to refuse to
  perform marriages that are not in accordance with
  their religious beliefs.

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Same-sex marriage in Canada

• Civil Marriage Act passed Parliament June 2005
  153-138
• Likely over 20,000 same-sex marriages in Canada
• Exact numbers not known
• 3- 5 of marriage ceremonies where data kept
• About 21 ratio of females to males
• As many as 1/3 not Canadians (tourists)
• Attitudes have changed and clear majority of
  public now supports same-sex marriage (59 to
  33)

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Small but growing number of same-sex couples
official stats likely underreport
Source 2001 and 2006 Census, Statistics Canada
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International Comparisons

• Spain, Belgium Netherlands, Norway, Sweden,
  South Africa have also moved from civil unions to
  full same sex marriage

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USA

• A more conservative religious country than
  Canada
• Some more liberal states moved to marriage-lite
  as a result of court cases
• Vermont civil unions (1999)
• NOT recognized as marriage for federal purposes
• A few states have same-sex marriage more have
  civil unions
• Massachusetts (2004) Iowa (2009) court cases
  require same-sex marriage
• State marriage laws enacted Vermont, Conn , N.H.
  Maine
• A number of states have civil unions
• Referendums tend to defeat same-sex marriage
• California voters in 2008 reverses court decision
• Litigation is ongoing but few successful cases
  the courts tend to follow public attitudes
• Opinion polls in USA reveal higher level of
  political opposition (53 to 42) to same-sex
  marriage than Canada (33 to 59)
• Shift over time in USA as more people, esp.
  younger support same-sex marriage

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Parenthood Also an evolving concept

• Historical concept based exclusively on marriage
  biology -gt illegitimacy as social legal
  concept
• 1978 abolition of illegitimacy (Ont)
• Social parenthood
• Obligation of child support if standing in the
  place of a parent
• Largely step parents
• Right to seek custody access
• Best interests over biology
• Artificial Reproductive Technology
• Two mothers? MDR (Ont 2006)
• Three parents? AA v BB (Ont CA 2007)
• Many issues still to address

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POLYGAMY
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Polygamy

• Definitions
• Polygamy the practice of having more than one
  spouse at the same time.
• polyandry, where one woman has more than one
  husband and
• polygyny, where one man has more than one wife.
  Over the course of history and today, polygyny is
  by far the most common form of polygamy.
• Polygamy (polygyny) tends to be practiced in
  patriarchal (male dominated)
  societies.
• Polygamists tend to have very traditional gender
  roles in marriage large families.
• Polygamy does NOT involve group sex most
  polygamists have very traditional views about
  sexuality.

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Controversy over Polygamy

• Some opponents of same-sex marriage have argued
  that changing definition of marriage to include
  2 persons opens the way for further challenges
  by polygamists
• Polygamy is widely practiced in parts of Asia and
  Africa, but decline over the past 50 years
• Polygamous marriages not recognized in Canada or
  USA
• Polygamy is a crime in Canada
• Law enacted 1893

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Polygamy- Marriage for more than 2?

• Diverse reality of polygamy in Canada
• Fundamentalist Mormons
• Concerns that female adolescents are being
  coerced to marry much older men
• Muslim and other immigrants
• Secular and other polyamorists
• Criminal Code s. 293
• Criminal law may have educational and symbolic
  functions
• Immigration issues
• Related to criminal law?
• Very significant issue in France Western Europe

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Laws in Canada USA

• Polygamy is a crime those in polygamous
  marriages cannot legally immigrate
• But adultery and group sex are not crimes
• Are the laws on polygamy valid?
• Infringement of religious freedom?
• significant research about harm to women and
  children from polygamy from Canada, USA, Africa
  Israel
• Women tend to compete for resources/attention
• Higher incidence of abuse of women
• Lost boys
• Poor education for children
• Large families mean poverty
• Inherently unequal relationship (male/female)

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Polygamy prosecution in BC

• Two male leaders of fundamentalist Mormon
  community in BC have been charged under s. 293 of
  the Code
• Charter challenges
• Freedom of religion
• Discrimination
• Multiculturalism
• S. 1 reasonable limit in a free democratic
  society
• Harm to women and children
• Commitment to gender equality
• Polygamy in an international context
• International developments
• Contrary to Canadian values

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Winston Blackmore and some wives
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Conclusions

• Marriage is not a static concept
• Canada is more liberal than USA
• Role of courts in changing law
• Significant role, as politicians reluctant to
  take controversial stands, but courts are
  unlikely to go against clear majority of public
  opinion (e.g. polygamy not likely to be
  recognized)

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Comparative Canada in the World

• Canada has one of the most liberal, functional
  and pluralistic family definitions
• opposite-sex common law
• same-sex relationships
• social parents multiple parents
• Except for polygamy

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Thanks for Your Attention!Questions or
Comments?

• bala_at_queensu.ca
• Queens Mini U
• May 24, 2009
• Mac Corry D214