Those who discussed property rights with us fell into three camps; a minority who were opposed to any property rights being accorded to gays and lesbians, those who wanted equal treatment for everyone and a third group which looked at the matter from a legal and practical point of view. Overall, this topic did not generate the depth of feeling that was apparent when adoption was being discussed. That was probably because property rights were seen as a more neutral issue, dealing with individual rights and responsibilities, as in the conflict of interest issue.

There was a consensus that Manitoba, when amending property statutes, should not amend the definition of "spouse" as a way to extend rights to common-law partners. I agree with that position. The term "spouse" is used to describe the other partner in a marriage and those who support marriage as the traditional form of family organization do not want anything done that would diminish its importance and its distinct identity. The gays and lesbians and organizations we consulted took exactly the same position. Although they seek more rights for themselves they do not want to interfere with marriage or with those who support it.

Most of those we spoke with recommended we stay away from setting out three separately defined categories of people as has been done in Ontario and some other provinces. They suggested a married category and a common-law category are the only ones that are needed. I agree with that as well. A definition of "common-law partner" and "common-law relationship", and the inclusion of one of those terms in specific sections, is all that is needed to make certain rights now available to married couples are made available to other couples as well.

The Manitoba Human Rights Commission suggested common-law couples should have the same rights to property benefits as married people, after a specified period of cohabitation. Its position was there should be consistent provisions in all statutes and the rights of all individuals should be the same. I will refer to their submission again when dealing with the registration of common-law relationships.

The two women I referred to earlier who opposed same-sex adoptions but thought the rules on disclosure should be the same for everyone, said all children should have the same right to support and other benefits from those raising them, as they would have from natural parents.

In another meeting a person who held strong views against providing property rights to gays and lesbians suggested if common-law couples (not just gays and lesbians) want the same rights as married people they should get married. She took the position that if their relationship breaks up, marital property legislation should not apply. She wanted clear differences between marriage and common-law relationships and accused us of "messing with marriage." She felt any laws that now provide benefits to common-law partners should never have been passed.

She was concerned society would be weakened by any recognition of gays and lesbians, that it would send a wrong message to youth and lead to the further breakdown of society. She wants marriage to be recognized as sacred and the creation of a life to be respected. In that regard I believe she was speaking of people who have children out of wedlock. She would not support a system for the registration other relationships. She thinks if children are born out of wedlock they should be protected by a will. Referring to gays and lesbians, she felt if people "make these choices there are going to be consequences. If things don't work out they want "us" to step in and make sure they have rights." She added, "responsibility makes people grow up."

One lawyer we spoke to wrote a follow-up and more extensive commentary on the state of the law. He suggested the case of Walsh v. Bona indicates the direction in which the law is moving and argued the Charter requires all couples to be treated equally. He suggested Manitoba laws should be amended to ensure all married, opposite-sex common-law couples, and same-sex common-law couples, are treated in the same way.

A gay person who has been seeking equal rights for years, told us that some provincial government administrators will still not accept the fact that a common-law partner of a civil servant is entitled to the same benefits as a spouse. Even if a notice of the relationship has been sent to some government offices, he said there is no guarantee it will be recognized or acted upon when benefits are due to be paid.

Several suggested the three-year waiting period to receive recognition of a common-law partnership that is included in Bill 41 amendments is unnecessary and unreasonable. Some suggested there should be a standard waiting period for all common-law partners, whether there is a child involved or not. Others thought the present distinction could be justified. The majority preferred the federal legislation that requires one year of cohabitation for everyone. Saskatchewan uses two years. I will comment on the constitutionality of these distinctions later in this part.

One group recommended the Marital Property Act, Human Tissue Act, Wills Act and Homesteads Act be re-examined and amended to provide similar rights for all individuals and relationships. Concerns about the consents now required on the sale or mortgaging of a marital home and intestate succession were raised, but made no concrete suggestions as to how comprehensive rights should be dealt with were made. They also pointed to other areas of concern such as consents for medical treatment, mental health and school reports.

One member of the Bar recognized the complexity of the situation and suggested some creative work is required to effectively deal with the concept of homestead. She suggested inquiries be made to see what other countries have done in that area. We heard little on provisions that would provide all children with similar rights and advantages.

Mr. Barry Effler, Deputy Registrar General and District Registrar of the Winnipeg Land Titles Office provided some valuable information as well as some difficult issues to consider. He commented on a system for the registration of non-marital relationships and I will deal with those later. For the moment, the following are some of the concerns he expressed about matters that would have to be considered if property rights are extended to common-law couples.

He pointed out that, at the present time, the Land Titles system does not recognize common-law spouses for any purpose under the Homesteads Act, Power of Attorney Act or the Real Property Act. Other statutes provide some rights to common-law couples but he said they do not apply to the Land Registry system. He said if rights are to be extended, terms such as "common-law relationship," "domestic partnership" or "common-law partner" would have to be defined and the same definitions would have to be contained in all statutes that deal with real property.

While amendments are being made, he suggested the provisions that relate to who can take the consent of a person with homestead rights, be upgraded. He said the Powers of Attorney Act would also have to be amended. The Revenue Act should also be amended he said, to enable a common-law partner to have the same exemption from taxation on the value of land being transferred, as now exists for married people. The Farm Lands Ownership Act would also have to be amended if it is to apply to a common-law partner.

In his paper, which followed his discussion with us, Mr. Effler pointed out some of the problems that already exist. He said his staff is constantly examining situations to see what rights a spouse has. If there are changes he asks those issues be kept in mind:

Above all, he asked us to stress that if and when changes to property legislation are made, it is essential administrative bodies be certain who is included and who qualifies for any rights that are extended. He also indicated his were personal observations and were not to be taken as changes suggested by him, by his office, or by the Department of government responsible for his office.

Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part III) Property - Consultations
Part III) Introduction	Part III) Case Law
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