The question of registration arose during our first meeting when consultants discussed the Nova Scotia approach to same-sex adoption. In Nova Scotia common-law couples, whether they are of the same or another sex, may register their "domestic relationship". Its attraction to those who support the approach was it immediately entitled those who registered to the rights and benefits of a "spouse" under a number of provincial statutes.

Some with whom we spoke were absolutely opposed to doing anything that might enhance the rights of common-law couples, believing that any such movement would diminish the strength and standing of a marriage. Any other relationship that was similar to a marriage was dismissed out of hand. One person felt all children should have the same rights vis a vis their care-givers as other children, including the same rights of succession to property. She inferred that children in a common-law relationship do not have all the rights they should have at the present time. She said she would be in favour of a system of registration if it provided more rights for children

Some who thought a registration system might be beneficial liked the thought of a system that would give greater recognition to the position of same-sex couples. Churches, with a few exceptions, do not perform commitment ceremonies. The opposing view, that was not expressed in so many words, was that gay and lesbians, whether living together or not, are not worthy of support, should have no additional rights, and certainly should not have their relationship to one another legally recognized.

Another who was concerned about the waiting period required of common-law partners before they receive certain employee benefits, said statutes should be amended to provide the same rights and did not see how the registration of a common-law partnership would improve the situation. She favoured the federal legislation that provided benefits when a common-law relationship has existed for one year.

Another felt an advantage of creating a registry would be, pending a final decision by the courts on same-sex marriage, it would allow same-sex couples to have access to various rights immediately. Others opposed the registration of common-law relationships as they were in favour of common-law couples being able to marry. They felt certain that change is coming and did not want to see another system put in place that might delay the right to marry. Others who felt the marriage of same-sex couples will eventually be approved, said that the registration of partnerships would be a good interim measure and might hasten the day when marriage is possible.

Two gay men said, "registration is always valuable." They suggested it would enable relationships to be immediately recognized without having to wait the year or three years that now appears in some amended statutes. One advised there is still a problem having a common-law partner recognized as a common-law spouse by personnel in the provincial Pensions Benefits office. Registration, he said, would provide more rights and responsibilities. Both felt children should have the same rights from all care-givers.

One of the School Trustees to whom we spoke has teen-age children but no agreement with her common-law partner. She would prefer to see a Common Law Union "in the meantime" rather than Nova Scotia's registration system. She too seemed to assume that, before long, same-sex partners would be able to marry.

Several representatives of Child and Family Service Agencies told us gay and lesbian people are now adopting children, but not as couples. They believe changes to the Adoption Act, not registration, is what common-law couples require if they wish to jointly adopt a child. The agencies do their own careful screening of adoption applicants and said a registration system would not change their process or responsibilities.

The representatives of labour organizations believed permitting couples to join in the adoption of children would strengthen the family unit. They were nevertheless interested in registration if it would add to the protection of children and the extension of their property rights. They hadn't considered the matter and were unsure if registration would help.

A lawyer and board member of Adoption Options (Manitoba) Inc. suggested "registration is the only way to go." He pointed out that you register a marriage and there are rules that flow from that. He said: "It is a voluntary decision. If people register they accept the rules that apply. With registration, you know when the association began." He also believed the registration of a relationship would be good for children and their need for support and estate benefits. He suggested childrens' rights should be the same for all whose "parents" are married or are same or opposite-sex partners.

The Executive Director of EGALE in Ottawa spoke to us by telephone. His main concern was to see same-sex couples able to jointly adopt children and he did not think that goal would be advanced by having a system that would register common-law partnerships. He nevertheless made an interesting comment that may indicate an advantage of registration if it adds stability to a relationship. He said, in written material that followed our discussion:

It is hardly in the best interests of the child to deny him or her the emotional, psychological and legal benefit of having two parents recognized at law. A law which fails to recognize the equal co-parenting roles of the two partners in a relationship places one partner in a legal limbo, and creates inequalities within the relationship. The non-legal parent may not be recognized for the purpose of making medical or care-related decisions about the child, or may lack authority to deal with the child's educational needs. If the legally recognized parent is ill, unavailable or dies, the non-legally recognized parent may find that his or her relationship to the child is not recognized or respected.

A National Vice President of REAL Women, who we also spoke to us by telephone believes that marriage is unique and should have priority. At the same time she felt if common-law partners are going to receive benefits they should have the same responsibilities as other people. She stated as well, that all children should have succession rights with respect to those that raise them. She made no comment on registration that I noted.

The Director of Research for Focus on the Family of Vancouver felt registration would be beneficial as it is close to a married relationship. He said same-sex couples should have the same obligation as others to provide support for one another and child support.

At the second of our meetings we again discussed the Nova Scotia system and, for the first time, heard of a Civil Union. The Manitoba Human Rights Commission told us of the system that has been established in the State of Vermont. It suggested their approach is preferable to the registry system in Nova Scotia that only deals with property interests, and urged us to recommend the establishment of a Civil Union system in Manitoba. The Chairperson kindly left with us a copy of the enabling statute and a variety of other material that describes how the system works.

Another representative of the Human Rights Commission, while supporting a registration system, pointed out that people voluntarily enter into a marriage and there are legislated rules that apply to married couples. A marriage is registered in a government office and the status receives legal recognition. He said a similar system should be established in Manitoba so common-law couples can register their relationship and receive recognition of its existence.

Our final meeting was with Mr. Barry Effler, the Deputy Registrar General for Manitoba and District Registrar of the Winnipeg Land Titles Office. He made it clear that his comments were personal and were not to be construed as the official position of either The Property Registry or the Department of Consumer and Corporate Affairs.

His was nevertheless a very significant presentation and he was very open with us on some of the problems that now exist and how they might be dealt with in the future. His comments provided another perspective on a number of matters, some of which I referred to when writing on property, but I have chosen to include his comments in this part of my report as they raise issues that bear directly upon the registration of common-law relationships. They also raise a number of other issues government will want to keep in mind when amending legislation.

He made the point that he "took no sides" on any registration debate, but is looking at the possibility from the practical position of someone who has to deal with the registration of various instruments affecting interests in real property on a daily basis. In a written memorandum he forwarded after our meeting, he said, "the relationship, whatever it is called, should be registered somewhere."

He also made the more general comment:

I ask that whatever approach you select with regard to both common-law spouses and same-sex common-law spouses that you keep in mind the principle that administrative bodies will require the ability to be certain as to who is in these relationships and (who) are qualified (to receive) the rights granted by legislation.

He said the Homesteads Act, Powers of Attorney Act and the Real Property Act are constantly being examined by him and his staff to determine what rights a spouse now has in certain situations. He said it is imperative that government define a "common-law relationship", "common-law partner" or "domestic partnership", if any of those or similar terms are used, and that they be the same in all property statutes.

In addition to registration, we also discussed the deregistration of a common-law relationship, and he said the Land Titles Office could create a "Notice of Termination of Homestead" if the legislation called for one. He asked the rhetorical questions: "If there is not a termination, when does a common-law partnership end? Is it one year after a separation, or should someone be able to apply to court for an order of termination if the other partner won't sign a termination?

He suggested that if there is to be a registration of a "common-law partnership" under the Vital Statistics Act, the name of the parties should be able to be amended as they are on marriage. A common-law wife, for example, might wish to adopt the surname of her partner, or visa-versa. The exact names are important for Land Registry purposes.

Under the existing rules, he told us the Land Titles Offices do not recognize common-law spouses for any purpose under the Homesteads Act, Power of Attorney Act or the Real Property Act. Other statutes that provide some rights of support on separation do not apply to the Land Titles system. He thought there could be a registration system and requirements in the Real Property Act, but rejected that, as its provisions would then have a limited application.

Mr. Effler said his office would have no difficulty administering a regime in which a certificate of domestic partnership could be obtained and where the same rights now enjoyed by a spouse under the Homesteads Act would be available to a common-law partner. A certificate proving the registration could be filed in the Land Titles Office. He said certainty is their key problem but they would have no difficulty with a system permitting someone to be registered as a spouse by marriage or as a domestic partner.

He indicated the situation of opposite sex common law partners is much more difficult. Unless the parties are prepared to enter into some kind of formal acknowledgement of their relationship by the registration of a domestic partnership or by marriage, he could not see how the Homesteads Act, as it is now worded, could apply to opposite-sex partners. He suggested it might be possible to codify the relevant trust law on this issue and provide rights under that regime instead.

He cautioned that if a registration system is to be introduced, the legislation should be precise so there would be no possibility of a number of persons qualifying as a spouse or domestic partner and both having rights under the Homesteads Act. Even the present scheme raises concerns as to whether a divorce terminates pre-existing homestead rights. The same issue might arise following the termination and de-registration of a common-law partnership.

I merely raise these issues at this time as ones that should be kept in mind, not only if a registration system is instituted, but also if amendments to property legislation are made to add the words "common-law partner" after "spouse" in a number of statutes.

Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part IV) Registration of Common-Law Partnerships Consultations
Part IV) Introduction	Part IV) Advice and Recommendations
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