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Law Commission of Canada




Few would dispute that adult personal relationships characterized by caring and commitment ought to be recognized and supported by the state because of their fundamental importance to the well-being of individuals and communities. The law has long sought to identify these relationships by reference to ties of blood, marriage or adoption. Contemporary norms, however, value adult personal relationships by reference to their qualitative attributes rather than their formal legal status. This shift in normative assumptions has accompanied profound shifts in Canadians’ living arrangements over the course of the last thirty years. We have witnessed a decline in the marriage rate, and sharp increases in the rate of non-marital cohabitation, divorce, non-marital and single parent child rearing. In seeking to recognize and support adult relationships of caring and commitment, the state should be guided by the fundamental values of autonomy, privacy, equality and security that are central to our constitutional and political traditions. Individuals should be free to choose whether (and with whom) to form personal relationships. The state should promote relational autonomy by avoiding policies that create pressure to abandon relationships of caring and commitment, or that accord preferential status to certain categories of relationships defined without reference to their qualitative attributes. The state ought to promote privacy by avoiding intrusion into peoples’ homes and by avoiding legal rules that cannot be administered effectively without intrusive examinations into peoples’ intimate lives. The state should promote equality by regulating adult personal relationships by reference to qualities that are relevant to legitimate state objectives. The values of equality and security require the state to seek to prevent exploitation and violence in personal relationships. Finally, the value of security requires that the state put in place an identifiable and accessible set of legal mechanisms to protect persons’ reasonable expectations formed in adult personal relationships.

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Family Law Commons