Issue No. 1

The first question in the terms of reference was whether the provisions of the Adoption Act of Manitoba would withstand a challenge advanced under the Canadian Charter of Rights and Freedoms.

To comply with the Supreme Court of Canada decision in M. v. H., the Adoption Act will have to be amended to remove the rights and benefits now given to opposite-sex common-law partners or to provide the same rights to same-sex partners.

I describe the options in that way because the Supreme Court has not said that it is impossible to legislatively distinguish between the rights of married people and the rights of those who are not married.

The Supreme Court's practice is to not go beyond the facts of the case that is before it and the legal issues those facts raise. It may therefore be years, if ever, before the Supreme Court deals with the question of whether common-law partners are entitled to the same rights as married people. Legislation may intervene, as the provinces can make that sort of change if they wish. The question of whether gay or lesbian people may marry has also yet to be litigated and, as marriage is a federal matter, the federal government can legislate on that topic if it decides to do so.

Because the question was not before it, the Supreme Court, in M. v. H. carefully refrained from commenting on whether common-law couples have the same rights as married people. It also clearly declined to discuss the question of whether same-sex people are entitled to marry one another.

As it would be turning the clock back to remove the rights of opposite-sex common-law couples to adopt, when there is such a need for adoptive parents, I assume that it would be preferable to institute the second option and provide the rights now available to opposite-sex partners to same-sex partners as well. In the belief that the Manitoba government will prefer that approach, my subsequent comments will be based on that premise.

I might add that none of those we consulted suggested taking the existing right of opposite-sex common-law couples to adopt away from them. Nor did many suggest that only married couples should be entitled to adopt. While the question of a single person adopting was not addressed in detail, some said that it is preferable for a child to have a mother and a father.

I mention these matters at this point, as I did when discussing the case law, to indicate why I am reluctant to speculate on what the courts or legislatures will do in the future. The Supreme Court has nevertheless, in quite a number of cases, indicated its opinion on the importance of the family and the individual rights of all Canadians to the protections and benefits spelled out in the Charter. It is reasonable to suggest that the Court will likely continue in that vein and their pronouncements on ancillary matters should be considered in Manitoba.

Issue No. 2.

As I discuss possible amendments, I will put forward wordings to make my intent as clear as possible, but I recognize that the government's legislative counsel may prefer different phraseology and may wish to make additional changes to clarify or simplify some of the sections.

I begin my recommendations on amendments to the Act with the one I consider to be of greatest significance. If a statement is made near the beginning of the Act that any two people or adults are entitled to have a child placed with them for the purposes of adoption and are entitled to receive an Order of Adoption, and if that statement is not contradicted by subsequent provisions in the Act, that could have a considerable affect on the manner in which the Act is written.

A number of the troublesome sections I will later refer to will have to be deleted, but others could also be amended in a more substantial manner than I will suggest. The Act could even be entirely re-written and simplified if the basic requirements were the same for all divisions or categories. The need for divisions might not even be necessary. I will not press the point further but do suggest that some of the detailed changes I propose may not be necessary.

Section 10 of the Adoption Act now provides:

"An adult who resides in Manitoba may apply to adopt a person in accordance with this Act."

That provision, as it stands, should be a sufficient indication of who may apply to have a child placed with them for purposes of adoption, and who may become an adoptive parent. The words "an adult" included "adults" as Section 19 of the Interpretation Act provides:

1. words in the singular include plural, and words in the plural include singular.

That definition unfortunately does not apply throughout the Adoption Act at the present time as any two adults may not apply to adopt. Later sections of the Act contradict Section 10 and establish other criteria. The reason why all adults may not adopt is because a number of sections state that the applicant(s) must be of the opposite sex to the parent, must be related by blood or marriage, or be a man and woman who are not married.

Even if the subsequent sections are amended, I suggest that Section 10 be amended in any event to make it absolutely clear that any two common-law partners may jointly apply to adopt.

When drafting how this contradiction might be corrected, I have considered the terminology used by other provinces when indicating who may apply to adopt. Some are quite precise while others remain vague.

I recommend against following the manner in which Saskatchewan has made its amendments. It has amended its Adoption Act to provide:

"Clause 2(1)(p) of the Adoption Act is repealed and the following substituted:

'spouse' means the legally married spouse of a person or a person with whom that person is cohabiting as spouses."

The same wording is applied to other domestic relations and property-related statutes in Saskatchewan. In my opinion that clause is not clear and may still require judicial interpretation or clarification.

Nova Scotia has not amended its Adoption Act since M. V. H., as have other provinces. While its Act contains some interesting provisions that I will deal with in another part of my final report, there is nothing that I can recommend in its Act that deals with who may apply to or adopt a child.

The best examples of an acceptable statement that I have seen are found in the British Columbia and Newfoundland legislation.

The British Columbia Adoption Act has allowed same-sex couples to adopt jointly for a number of years. Section 5(1) of its Adoption Act, R.S.B.C., 1996, c.5, provides:

"Who may receive a child for adoption

5(1) A child may be placed for adoption with one adult or two adults jointly."

Newfoundland has amended its Adoption Act to permit both stranger and step-parent adoptions. Section 20 of the Adoption Act, SN 1999 c. A-2.1 provides:

"Who may apply to adopt

20(1) One adult alone or 2 adults jointly may apply to a court to adopt a child under this Act."

Several, including some law professors, urged us to recommend that the Ontario three-tier adoption scheme not be adopted in Manitoba. Ontario has also chosen to re-define "spouse". Along with an analogous definition of "same-sex partner", a number of statutes state:

The majority of those who discussed wordings with us preferred the British Columbia and Newfoundland approach. I also recommend that those wordings, or something similar to them, be used in Manitoba as they are clear and concise and leave no doubt about the ability of opposite and same-sex couples to adopt. The clearer and more precise legislative provisions can be, the greater their certainty and the freer they will be from the need for judicial interpretation.

I believe that Section 10 of the Manitoba Act, as it is now worded, should be sufficient to indicate who is entitled to apply to have a child placed with them for the purpose of adoption, as well as to adopt a child. Out of an abundance of caution however, I suggest a more precise wording. In this wording I do not refer to the right "to have a child placed with them for the purpose of adoption" as I believe that right will be inferred if an applicant has the right to adopt. Legislative counsel will of course select a wording they think is appropriate.

Issue No. 3.

Section 1 of the Act contains definitions that are supposed to apply throughout the Act:

There is no definition of the terms "common-law partner" or "common-law relationship" but if those terms are to appear in an amended statute they should be defined and the same definitions should be used in other statutes as well. The term "family" also appears in property-related statutes and the definition should either be included in all statutes or the term should be defined in the Interpretation Act so that it would apply to every statute in the province. The problem with having too much covered by the Interpretation Act is that it is not usually consulted by those wanting to find out what a specific Act contains.

The definition of "extended family" as it is now defined would not survive a Charter challenge as it limits those covered by it to "persons of the opposite sex---" It is a discriminatory provision akin to that dealt with by the Supreme Court in M. v. H.

The problem becomes evident in the reference to "extended family" in Section 76 which says that a person who is entitled to surrender guardianship of a child "may place a child with a member of the child's extended family for the purposes of adoption". The definition of "extended family" limits the section to opposite-sex common-law couples.

Although it is not a matter directly referred to us, I question the accuracy of the definition of "extended family" as it applies to Aboriginal people. It would be well to examine it in consultation with an Aboriginal historian if the intent is to widen the scope of "family". My understanding of the Aboriginal use of the term is that it includes people who are not related by blood, or where that lineage may be difficult to prove. I understand that it may include a member of an Aboriginal community who is called or looked upon as a grandparent, parent, cousin, brother or sister, even though they may not technically fall into any of those categories. Adding the clause "or a spouse of" any of the enumerated relatives adds little to the definition and does not include the other "non-relatives" I have mentioned.

The term "in loco parentis" in the definition of "family" does not broaden the scope of "extended family" although it may refer to some common-law spouses of natural parents. A person in loco parentis is a person who is not related to the child, directly or by marriage, but stands in the place of a parent and has been acting as a parent toward the child. In my opinion more specific language is required if the definitions are to apply to common-law partners.

I suggest that these issues be examined to make sure they reflect the government's intent to include people who do not fall within the normal definition of family, although I do not include these suggestions as a formal recommendation.

I do however recommend that the Adoption Act make it absolutely clear that those entitled to have a child placed with them for purposes of adoption, and the right to become adoptive parents, applies to everyone whether they are married, are common-law couples of the same or opposite sex, or whether they are a single applicant.

In my opinion the initial definition of "common-law partner" that I recommend is sufficient, but if some should think it is not sufficiently precise, or if the government wishes to make its intent absolutely certain, my alternate definition of "common-law partner" could be used.

Issue No. 4

When discussing how statutes might be amended to comply with M. v. H., all the lawyers urged us to recommend against redefining the word "spouse" to have it include a common-law partner. We did not discuss that sort of detail with those who were opposed to same-sex adoptions, but I feel secure in saying they too would be opposed to seeing that term being given any other than its present meaning, namely - the other married partner.

I also recommend against expanding the definition of "spouse". It is not necessary to do that in order to grant adoption and other rights to common-law partners. Such a move would also raise the ire of those who support the sanctity of a traditional marriage to which the term "spouse" relates.

It is preferable, where it is necessary to extend a right now given to a spouse to those in a common-law relationship to add, after the word "spouse" the words "or common-law partner". That would result in the right in question being accorded to all common-law partners.

Issue No. 5.

Section 36 of the Adoption Act now provides that only the following may apply to have a child placed with them for the purposes of adoption.

Where

1. a husband and wife
2. a man and a woman who are not married but are cohabiting as spouses; or
3. a single adult;

desire to have a child who is a permanent ward placed in their home with a view to adopting that child, they may make an application to the child and family services agency having jurisdiction in the area where they reside for the purpose.

Subsection (b) implies that an unmarried couple, comprising a man and a woman, are to be treated as if they were married, so they may apply to have a child placed with them, but the wording limits the provision to "a man and a woman" so two people of the same sex are excluded. Subsection (c) makes it clear that a single person, without regard to their sex or sexual orientation, may also apply to have a child placed in their home.

This subsection would not withstand a Charter challenge because subsection (b) provides the opportunity for common-law couples made up of a man and a woman to commence adoption proceedings. The result is that it prohibits a same-sex common-law couple from adopting.

In the language of M. v. H., it is discriminatory and contrary to the equality guaranteed by Section 15 of the Charter. It discriminates on the basis of sex and sexual orientation.

If my Recommendation No. 1 is followed, none of subsections (a), (b) or (c) need be included in the statute. If it is not deleted, the following would cure the problem.

Issue No. 6

Section 73(1) of the Act provides:

This section is in the same category as Section 36 as it limits the right to opposite-sex couples. It would not withstand a Charter challenge as it excludes same-sex couples.

Issue No. 7

The present heading to Division 6 refers to the adoption by a person who has married a child's parent. To have it apply to all common-law couples it should be amended.

Issue No. 8

Section 88 (b) now provides:

This is another section that would not withstand a Charter challenge.

Issue No. 9

Section 94(1)(a) now provides:

This section provides that a judge may make an order of adoption as long as "the person adopting is older by a reasonable number of years than the person to be adopted". In my opinion that provision could be challenged under the Charter as it discriminates on the basis of age. I see no rationale for the provision. There may be circumstances where a younger person might wish to adopt an older person to provide needed protection and support. If the offending words are removed, or if the section did not exist at all, the judge would still be able to consider whether the particular application should be accepted.

Issue No. 10

The declaration of commitment that adoption applicants have to sign appears as form AA-14 in Regulation 19/99 made pursuant to the Adoption Act. It contains the following clause:

"2. We have been living together as though husband and wife continuously since the ______ day of ____________, _______, and we are currently living together and intend to live together as though husband and wife on a permanent basis."

This implies an opposite-sex relationship and, if amendments are made to the Act itself, it would be contrary to its intent and its provisions.

Issue No. 11

I was intrigued to hear of the "openness agreements" that are explored by certain organizations and agencies. Although the Act provides for such agreements to be in writing, it appears that most agreements are oral in nature and are not always honoured. Some agreements, I was told, have to remain flexible in the future to suit the wishes of the parties and their comfort level in communicating with one another.

The agreements usually call for the provision of information on how the child is doing by way of letters and photographs and some include visits with the child. Some permit continuing contact by grandparents. The Act provides that ways of settling disputes can be contained in a written agreement.

Continuing contact between a parent and a child can sometimes be beneficial for the child. This is particularly true where an Aboriginal child is being adopted by people from another culture. Opikihiwawin is an organization in Winnipeg that offers advice and support to non-Aboriginal parents who have adopted Aboriginal children. It places significant emphasis on keeping the children connected with their culture and with their extended families.

If more formal openness agreements are deemed to be appropriate, consideration might be given to permitting a judge to put conditions on an Adoption Order by setting out the terms of future contact that are to apply. If a judge makes some continuing contact a condition of an Order of Adoption, or makes another Order at the same time, it would likely be taken seriously by the adoptive parents, would not be as easily ignored, and could be enforced by the court.

When on the bench I often heard from psychiatrists that as children of separated parents grow older they are anxious to know something of the missing parent. In some cases the child may have a pressing psychological need to know that parent and has a feeling of loss or emptiness if there is no contact. If information on a missing parent is not forthcoming, I was told that a child often places the missing parent on an undeserved pedestal. Expert witnesses suggested that it is often best to encourage some contact between the child and the missing parent so the child can make his or her own realistic assessment of the person.

I am not pressing this recommendation as a number of issues and people would have to be considered before a final decision is made. I do make it however as the government has expressed its concern for the best interests of children.

Issue No. 12

When a judge makes an Order of Adoption where the applicants are of the same sex, we presume the judge will merely name them as the adoptive parents. There is however a potential problem when the Order reaches the Vital Statistics office. Section 10(9)(b) of the Vital Statistics Act provides that the names of the adoptive "parents" shall be shown as being the parents of the child, but at the moment the practice is to name them as "mother" and "father".

The Vital Statistics office has not yet had to deal with how it would name same-sex adoptive parents as that is not now permitted, but neither has it been asked to register an adoption from another province, like British Columbia, that does permit same-sex adoptions. I suggest that if the Manitoba law is amended to permit them, a policy be established as to how same-sex adoptive parents are to be designated at Vital Statistics. It may be that an additional form will have to be added in the Regulations to accommodate same-sex parents.

Apparently the Director of Vital Statistics has to record the sex of the new parents for statistical purposes, but I suggest that the new certificate of birth show each same-sex adopting person as "parent" as in British Columbia. It would, in my opinion, be easier for a child to say that he or she has two "parents", rather then two mothers or two fathers. Those terms might be embarrassing to a child in later years when a certificate of birth has to be produced.

Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part I) Adoption - Advice and Recommendations
Part I) Case Law	Part II) Introduction
Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report