A few months ago, Statistics Canada released the results of the 2001 census on families. It presented a portrait of the diversity of personal relationships in Canada: unmarried couples, gay and lesbian couples, older children returning to live with their parents, young adults remaining in the parental home. This statistical picture is no surprise to people working in social policy. Indeed, these trends have been identified by researchers for a while.
In addition to the nuclear family centered on the con- jugal couple, there has always been a variety of other living arrangements, including adult siblings sharing a home, widows and widowers forming blended families and multi- generational households. There is also a significant number of adults living alone, lone-parent families, and nonconju- gal domestic relationships. What the census reveals is an accentuated pattern of change in the composition of households: more unmarried couples, and older children living with their parents. In addition, one must recognize that interdependent relationships also exist in the absence of a shared residence, beyond the concept of household used by the census.
Close personal adult relationships are relevant to a large number of Canadian laws. There are more than 1,800 sections in federal statutes, apart from the Income Tax Act, that use terms like spouse, husband and so on, to describe close personal relationships between adults. Most often, the government has used the most visible of these rela- tionships ”” that between wife and husband ”” as a proxy for all close relationships when developing policies and programs. Marriage alone was the dominant recognized relationship for decades.
Demographic changes certainly do impact on social and legal policy. Recently, the ”œmarried” unit was redefined as the ”œspousal” unit, then the ”œconjugal” unit. In an effort to include common-law couples and now gay and lesbian couples, legislation, public policies and even collective agreements and insurance contracts have increasingly used an expanded definition.
Beyond that, however, the law has not recognized the increasing diversity of relationships reflected in the census. As a result, some laws might exclude people who should be included. For example, many statutes are organized around the idea that economic and psychological interdependency is a fundamental characteristic of only conjugality. In maintaining that focus, governments fail to look at other relationships that may share similar characteristics of pooled income, shared residence or personal and psychological support. This is a mistake: focusing our social policies on marriage and conjugality prevents us from adequately support- ing other relationships.
Most existing laws are based on assumptions about how people organize their personal lives, who they live with, trust, care for and depend on to meet their life needs. Some of these assump- tions are out of date or inaccurate. As a result, some of these laws apply to more people than perhaps they should. The current law assumes that all marriages and conjugal relationships are the same. The reality is very different. Some cou- ples share all their income, others do not. Some couples provide emotional and psychological support to each other, while others do not.
The impact of an overly narrow focus, on the one hand, and incorrect assumptions, on the other, is significant. There is a wide variety of Canadian laws that give benefits to or impose responsi- bilities and obligations on people because they live in relationships. Tax, immigration, and criminal statutes are just some of the laws where adult rela- tionships come into play. For example, the Evidence Act prevents a married spouse from testifying in certain circum- stances at the criminal trial of his or her married spouse. The provision focuses only on the presumed loyalty or psy- chological interdependency between ”œmarried” spouses, whether the couple exhibits this interdependency or not. What about other relationships? What about the unmarried couple or the adult child living with his or her parents? Why are they not treated the same way? Since the role removes spouses’ choice to testify and can lead to the exclusion of vital evidence, the basic question also remains, is this provision still necessary?
The analysis by the Law Commission of Canada supports a comprehensive review of the use of terms such as spouses, conjugal part- ners, and family members in legisla- tion. The report submitted to Parliament proposes a methodology to review such legislative uses by first determining whether relationships are relevant to the statutory objective or not. For example, the report rec- ommends that sections of the Employment Insurance Act be modified so that people who work for family members are not penalized for being presumed to be involved in a fraudu- lent transaction. These provisions have a particular impact on the spouses and partners of small busi- ness owners, often women. The focus should be on whether any employ- ment contract was manufactured for the purpose of claiming benefits.
The following three examples, drawn from the areas of caregiving, immigration and tax-free transfers of property, demonstrate situations in which relationships are relevant to the legislative objectives. However, these examples reveal that our laws are not responding sufficiently to diverse trends in close personal adult relationships.
The recently released 2003 federal budget promises to enhance the ability of employees to leave their work in order to care for someone at home. If they meet the eligibility requirements, workers will be entitled to a six-week employment insurance (EI) compassion- ate family care leave benefit to care for their gravely ill or dying child, parent or spouse. Eligible family members, that is, those in parent-child or spousal relation- ships, will be able to share the benefit so they can each provide some caregiving. The aging population, deinstitutional- ization and reductions in publicly fund- ed home care services have contributed to a greater need for family, friends and communities to take care of people in their homes. This income replace- ment program under the EI regime will provide some relief in certain situations.
There are complementary laws in many provinces that give employees the right to take unpaid caregiving leave from their jobs. Coupled with the EI benefits, this leave can now be paid. Most of these statutes list qualifying family relationships such as spouses, children, parents, grandparents, grand- children, siblings and other relatives who need care. While among them- selves the provinces have more or less limited lists of relationships, they are broader than the relationships recog- nized by the federal government for the new EI benefits. In almost all cases, however, these closed lists fail to recog- nize nonfamilial close adult relation- ships in which part of the emotional interdependence may be caregiving.
Governments benefit when they encourage caring relationships that involve an exchange of personal care and support. Over the last few years, governments have been taking legal and fiscal steps to recognize the impor- tance of caregivers and encourage their continued role. Large numbers of older adults and persons with disabilities rely on family and friends. However, whether a caregiving relationship has made the statutory list or not, care- givers’ responsibilities can take a major toll on their economic security and physical, emotional and psychological health. Can employees not determine for themselves which relationships require them to take caregiving leave?
Allowing employees to self-desig- nate would help ensure that, consistent with governments’ objectives, informal caregiving relationships are encouraged and supported. The goal is the caregiv- ing, not the relationship. Instead of depending on certain types of relation- ships, the relevant relationships should be determined by their function in peo- ple’s lives. Potential abuses of the sys- tem could be addressed by placing caps on the number of days, as is proposed for the new EI coverage, or by asking employees to provide their managers with a list of close friends or others who may require care.
The announced compassionate family care leave benefit is restricted to a narrow range of family members in a defined set of particular circum- stances. That program and other relat- ed leave provisions would better meet governments’ objectives and reflect reality by allowing individuals to choose the relationships that matter to them most.
In another area that focuses on relationships, Canada’s immigra- tion laws have long promoted the reunification of family members who form emotional and financial inter- dependent relationships. The govern- ment appreciates that reunification enhances self-reliance and supports the building of communities. The new 2002 immigration law extended the sponsorship provisions to family members not previously included. Under the family class, applications can be made for spouses, common- law or conjugal partners, parents, grandparents, orphaned brothers/sis- ters, nephews/nieces, grandchildren, and adopted or dependent children. The objective of the family class sponsorship provisions is to recog- nize and protect the integrity of close personal relationships by facilitating the reunion of family members.
However, while Canada recognizes the importance of these relationships, they are limited to family members related by blood, adoption or conju- gality. Some people may not have any ”œlisted” family members. Many may have a very close friend they consider part of the family, a friend who may contribute emotional and financial support. A close friend could still apply under other grounds, but the family sponsorship route is more certain. Why not allow sponsorship of this close friend? Rather than relying on a closed list of eligible family members, sponsors could designate the individu- als they wish to sponsor. This allows people to decide for themselves which relationships are important to them.
Like the concerns over extending caregiving supports, governments may worry that opening the family class might lead to a significant increase in the number of immigrants. Some peo- ple are concerned that this broader cat- egory might be used to circumvent the law and jump ahead of other appli- cants. Sponsorship, however, is not taken lightly; it comes with a serious financial commitment to support the immigrant for a number of years. There are also a number of ways to avoid unintended use of the family class, such as capping the number of individuals a person can sponsor over a lifetime or requiring evidence of emotional or eco- nomic interdependence.
The new immigration law has made some advances in recognizing additional family members who can be very impor- tant to a sponsor. However, the category could be broadened still more to allow Canadians to identify their most mean- ingful relationships themselves.
Finally, the Income Tax Act also relies on the existence of close adult personal relationships in a large number of provisions. =
One area that has not yet responded to the reality of changing relationships relates to the ability of spouses and common-law partners to transfer capital property between each other on a tax-free basis (a ”œrollover”). Under normal cir- cumstances, when a person gives away capital property as a gift or bequest, the tax system overrides the notion of gift and considers the property ”œsold” at the fair market value for that sort of property. The difference between the market value and what the person paid for it in the first place is called a capi- tal gain and is taxed as part of that per- son’s income. Under the rollover provisions available to spouses and common-law partners, property, such as the family home, is considered by the tax authorities to be transferred at cost rather than at market value such that there are no capital gains to be taxed until the spouse getting the property sells it to someone else. The law rests on a presumption that conju- gal couples who transfer property between themselves are doing so in the larger context of shared financial resources, where it is difficult to sepa- rate who owns what.
Given the diversity of living arrangements today, is it fair to restrict the rollover provisions to conjugal couples? Are all conjugal relationships characterized by the economic interde- pendence that the government wants to promote? The answer to both ques- tions is no. Other close adult relation- ships, such as siblings living together for most of their lives, exhibit entan- gled financial resources. A transfer of capital property between them may also be informal and outside the mar- ket. They may not expect that such a transfer would entail large tax conse- quences. On the other hand, not all conjugal couples share resources. The government’s objectives would be bet- ter served by permitting rollovers for close relationships that are financially interdependent. In this case, self-selec- tion would not work. Instead, rollovers would be available to people in rela- tionships that meet certain criteria, such as length of cohabitation.
The three examples demonstrate the potential ineffectiveness of laws that focus solely on conjugal relationships. Overall, governments should determine whether relationships are relevant to the achievement of statutory objectives and should pursue a more comprehen- sive approach to the legal recognition and support of the full range of close relationships among adults.
Such reforms require looking at the functions served by relationships as opposed to their legal status. This is a radical move from the bright-line test traditionally used to establish if certain relationships should be recog- nized in various areas of the law. People are either married or not, related or not. It is much easier to examine a marriage or birth certificate than to determine if people are sharing their financial resources. Determining the existence of com- mon-law relationships is somewhat more difficult, but the government has responded by setting a time limit on cohabitation that may or may not respect people’s choices. Other legal systems can be developed to provide a clearer path to identifying relevant relationships, systems that respect people’s choices while enhancing the effectiveness of the law.
Governments regulate and recog- nize personal relationships in two very distinct ways. First, as discussed above, through a number of statutes governments take into account the economic and emotional interdependencies of personal relationships. Second, govern- ments provide legal structures to help people regulate their own affairs and protect their expectations. These frameworks facilitate an assumption of rights and responsibilities and promote a degree of certainty and stability in the relationship. For a long time, marriage was the only model that the government recognized. The legal ceremony of marriage serves to help people publicly make a commit- ment to each other and assume a range of responsibilities toward one another. In recent years, some rights and respon- sibilities were extended to include com- mon-law couples, both opposite- and same-sex. Consistent with their approach to the recognition of interde- pendency, governments, when provid- ing legal structures, almost exclusively restrict recognition and support to conjugal relationships.
However, whether we look at older people living with their adult children, adults with disabilities and caregivers, or siblings cohabiting in the same resi- dence, the ”œmarriage” model is inade- quate. Some of these other relationships are also characterized by emotional and economic interdependence, mutual care and concern and the expectation of some duration. All of these personal adult relationships could also benefit from legal frameworks to support peo- ple’s need for certainty and stability.
It is important to provide for more flexibility in legal arrangements. Currently, marriage is the only volun- tary predetermined legal vehicle by which people can seek to ensure a cer- tain stability in their relationships. Though recognized, common-law cou- ples lack the voluntariness that charac- terizes marriage ”” they are automatically deemed subject to the law after a certain period of cohabitation. Other types of relationships have no choice to make. This is no longer a suf- ficient model, given the variety of rela- tionships that exist in Canada today.
Registered partnership systems exist in a number of countries, includ- ing some Canadian provinces, but most of these are limited to conjugal couples. Governments could develop registration mechanisms open to both conjugal and nonconjugal relation- ships so that people who wish for certainty and stability can voluntarily choose from a variety of models that suit their particular arrangement. Stability and the possibility of regulat- ing one’s affairs should not be depen- dant on sexual intimacy. Although it is true that people can always retain the services of lawyers to draft contractual arrangements, governments can help by creating frameworks and predeter- mined legal obligations to help rela- tionships flourish with fairness and stability. The diversity of relationships warrants an expansion of the range of mechanisms available to citizens to regulate their own affairs.
The diversity of relationships in Canadian society is a reality. We cannot afford to continue to develop policies that are based solely on visions of fami- lies that exclude a large majority of cit- izens. For many Canadians, the relationships that they hold dear, as varied as they are, constitute an impor- tant source of comfort and are what helps them continue to be productive members of society. Recognition of nonconjugal relationships will require that governments start from an even playing field and abandon long estab- lished assumptions about relationships. Governments should recognize the choices that citizens make to enhance their capacity to meet their needs: a diversity of relation- ships requires more flexibility and creativity in legislation and policy making.
What’s in a family? Much more than a name. It is now time for governments to move beyond the notion of conjugality and to recog- nize and support the diversity of close personal adult relationships formed by Canadians.
In January 2002, the Law Commission of Canada tabled in Parliament a report, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, that identified many of the issues discussed in this article. The report is available at www.lcc.gc.ca