At the present time, many people living in "common-law" are not in a very stable relationship. Some relationships are of short duration while others continue as long as a marriage. The rights of the partners (assuming for the moment there are no children) are either tenuous or non-existent. Excluding the rare "palimony" suits, the partners have no right to claim against one another for financial support or estate benefits.

While the decision not to marry is often mutual, sometimes one of the partners would like to marry but the other refuses. They may not want to be "tied down." That term sometimes means they do not want to assume the legal obligations that come with marriage. My personal view is that situation should not be able to continue indefinitely, and although I am not proposing it, it may be that all the requirements to support a partner should apply after the parties have been living together for (say) two or five years. Otherwise, on separation, it is often society at large that has to assume the support of the one who is unable to care for themselves.

A common-law relationship is looked upon by many, and by the legal system itself, as a loose arrangement between two people that can be terminated at the whim of either of them. The parties voluntarily take the risk, no matter how many years they live together, of having no right to financial support if they separate and no right to the estate if their partner dies. That situation can sometimes be corrected by a properly drawn and executed will, but as we were told in a pitiful letter we received in response to our advertisement, everyone doesn't get around to making a will. The person I speak of was left penniless when her long-time partner died.

If a child is born to a common-law couple, the situation improves somewhat. The mother becomes entitled to financial support from the male partner if they separate and the woman is still caring for the child. The opposite also applies if the man has custody. As far as I am aware, unless there have been recent changes in the law or cases on point, the situation of children whose parent and another are in a common-law relationship is still tenuous. The right of a child to inherit any of the assets of the non-parent partner do not exist, even if the child is the closest living "relative."

Even though Chartier corrected the in loco parentis problem, I am still concerned that common-law partners might be able to escape their responsibility to a child they have raised. I would like to see legislation to provide the children raised by common-law couples with the same rights, against both partners, a child has against natural parents.

Government has tried, over the years, to provide as much protection as possible for common-law spouses and their children, but it is clear it has never addressed the situation from the standpoint of providing the same benefits to a common-law partner as those provided to a "spouse". It has never addressed the problem by saying children of common-law couples have the same rights as children of married parents. The problem, in part, has been that common-law couples and children have been treated as a less deserving category. The Supreme Court has pointed out that can no longer be done. It is discrimination.

If couples are entitled to commit themselves to one another in a marriage, those who choose not to marry should also be able to commit themselves to one another in a similar manner. Even those who are still married to another should be entitled to register their current relationship. If they have or are raising children I suggest they be "deemed to be common-law partners" for the purpose of all legislation that deals with the rights of children.

I believe government should seriously consider the establishment of a system for the registration of common-law partnerships. By officially recognizing the existence of a common-law partnership, it would cloak it with an aura of permanence and stability that does not exist at the present time. It would certainly make the proof of its existence easier to establish. It would not give marital status to the registrants but it would provide a recognition that would be important when legislative rights and responsibilities are being considered.

A registration would be of value when estate and property matters are being recorded or are in dispute. Certainly, when property is being dealt with in the Land Registry System, a certificate of registration would provide the sort of proof that is required. It would answer some of the misgivings I had during our consultations about how government, the administrators of various departments and services and the courts, would even know if a common-law partnership exists. A certificate of registration would also indicate a degree of permanence when matters such as adoption are being considered.

It would enable people to advise their employer of their status so they would be assured of receiving conjugal benefits and it would address the problem with the Civil Service Superannuation Act that I referred to when dealing with property. The problem would be cured if a certificate proving the registration of a common-law partnership were on file with government or could be obtained by its departments. I can foresee that in a civil action dealing with the ownership of or succession to property an argument could arise as to whether the surviving partner was actually a common-law partner of the deceased or merely a friend who had been living with him or her. If a system of registration were available, common-law couples could formalize their arrangement and protect themselves from that sort of attack.

The problem of determining when a common-law union actually began will continue to exist, at least for those who do want to register their partnership. As one who discussed a variety of issues with us, so eloquently put it: "When does it move from "shacking up" to some sort of legal status"? He added the rhetorical question of how long a person has to wait to acquire "status"? His remark was made while commenting on the Civil Union provisions in Vermont but to answer his perfectly reasonable concerns, I say - there is only one way I can think of - register the relationship.

If there were a system of registration, it might be necessary to offer some incentives to encourage common-law couples to register. One might be to require the presentation of a certificate of registration before receiving benefits. Another would be absolutely necessary, that is to receive benefits with respect to the ownership of land

The benefits to a same-sex couple and the children raised by them could be equally dramatic. With the registration of their common-law partnership their partnership would receive legal recognition and the extent of their rights and responsibilities could more easily be defined or equated with those of married couples. The presentation of a certificate would enable them to acquire rights within the school and medical systems that are now denied to one partner.

I apologize if I mention the Supreme Court decisions too often, but is important to keep their decisions in mind. The Court has said that it is the law itself, the Canadian Constitution, that recognizes the equality of all people, and if the Manitoba government responds to those directives it will not be making new law or breaking new ground, it will only be recognizing a reality. The opening words of the Charter are: "Everyone is equal before and under the law and has the right to the equal protection and equal benefit of the law". A child is of course included in the term "everyone" and is entitled to receive the same benefits as all other children.

The Supreme Court's message to lawmakers is to be certain that legislation is drawn and amended with the equality principle in mind. Any citizen, including a child, may challenge any provision in a statute that does not treat them equally or imposes restrictions on their access to a benefit provided to others. The message to a judge and a court is that, if a challenge is raised, they must strike down any legislative provision that departs from the principle of equal protection and benefit.

The government may have to re-think its approach to the amendment of its property and other statutes to see that all the rights of common-law couples and children are the same as those in a marital situation. One of the stumbling blocks, if that were attempted, would be the question of proof. How would government be satisfied, or how would an individual prove that they are in fact a "common-law partner" or that they are in a "common-law relationship?" If registration is introduced it would answer those questions, at least for those who take advantage of it.

When dealing with property, I suggested that the one and three year waiting periods for common-law couples to receive benefits be removed. If some proof of the existence of a stable relationship is nevertheless required in certain cases, that would not be necessary or appropriate where a certificate of registration is produced. It would permit those who present a marriage certificate and those who present a certificate of a common-law partnership, to be treated in the same way and to receive the same benefits.

The requirement to register a relationship, instead of having to provide other proof of the existence of it, should not impose an unreasonable burden on common-law partners wishing to obtain benefits. As one consultant said: "You have to register a marriage to receive the benefits of being married."

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