Review Panel on Common Law Relationships

Section 52(a) of The Vital Statistics Act of Nova Scotia provides that a "domestic partner" means an individual who is a party to a registered domestic-partnership declaration made in accordance with section 53. The term does not apply to a relationship that is not registered. The effect of a registration is that:

Upon registration of a domestic-partner declaration, domestic partners, as between themselves and with respect to any person, have as of the date of the registration the same rights and obligations as

a spouse under the Fatal Injuries Act;
a spouse under the Health Act;
a spouse under the Hospitals Act;
a spouse under the Insurance Act;
a spouse under the Intestate Succession Act;
a spouse under the Maintenance and Custody Act;
a spouse under the Matrimonial Property Act;
a spouse under the Members' Retiring Allowances Act;
a spouse or a person who is married under the Municipal Government Act;
a spouse under the Pension Benefits Act;
a spouse under the Probate Act;
a spouse under the Provincial Court Act;
a spouse under the Public Service Superannuation Act;
a spouse under the Teachers' Pension Act;
a widow or widower under the Testators' Family Maintenance Act;
a wife or husband under the Wills Act;
a spouse under the Workers' Compensation Act,

and the domestic partners, the registration of their domestic-partner declaration and their domestic partnership are subject to and give rise to the same operations of law that relate to those classes of persons under those Acts and those Acts apply mutatis mutandis with respect to the domestic partners, the registration of their domestic-partner declaration and their domestic partnership.

Section 55(1) provides that a domestic partner becomes a former domestic partner where "the parties" file an executed statement of termination, where they have lived apart for more than one year and one or both intend that the relationship not continue, where one of them marries, or where they have registered an agreement with the court under the Maintenance and Custody Act.

Section 57, in Part II of the Act that deals specifically with domestic partners, provides that the Registrar shall note on the register the termination of a domestic-partner declaration---upon the receipt of:

There is no provision which permits only one of two domestic partners to register a statement of termination, nor is there any proceeding in the legislation by which a court can make an order that a domestic partnership has come to an end. It is possible that jurisdiction comes within the inherent jurisdiction of a court of superior jurisdiction, but it is not referred to in the statute and there has apparently been no such application to date.

On the other hand, under Section 40, where an application for the registration of a domestic partnership has been refused by the Registrar, a person may apply to the court to require the Registrar to accept the registration.

Section 36 provides that any person may have the Registrar of Vital Statistics search for the registration of a birth, marriage, adoption and other matters, including the registration and termination of a domestic partnership. A Registrar's report will indicate whether those matters are registered or recorded and give the registration number, but no further information. Section 37 provides that, by a separate application, a certificate may be obtained, which includes the names of the parties, the date of registration and some other particulars.

Section 39(1) provides that every certificate issued under section 37 "shall be admissible in any court in the Province as prima facie evidence ---of the facts recorded therein." It should be noted that the prima facie presumption is limited to the courts. In my opinion it should be wider than that and be prima facie proof for all purposes. It should be all the proof that a department of government needs and it should carry the same weight as a marriage certificate, unless there is some reason to question the validity of either certificate.

Nova Scotia is the first Province in Canada to establish a formal registration process, through the office of Vital Statistics, that gives legal recognition to a domestic partnership. In providing for the registration of a relationship and the issuance of a certificate to prove its registration, it has provided government sanctioned proof, not only of the existence of a partnership, but the date when it was declared to have commenced and of course the date on which it was registered.

In spite of this initiative, and the fact that the system is still in its infancy, there are some features of the system that could not be adapted to the manner in which common-law partners are now recognized in Manitoba statutes. Instead of amending each statute to have it extend rights to common-law partners, as Manitoba did with Bill 41, Nova Scotia has indirectly extended the definition of "spouse" and spousal benefits but only to those who register.

I do not care for this indirect manner of providing spousal rights to common-law partners in any event. Nova Scotia did not redefine "spouse" but provided spousal benefits to those who register. I think Manitoba should stick with its current method of adding benefits to common-law partners on a statute by statute basis. The benefit of the Manitoba system is that each statute is complete in itself and stipulates the rights and responsibilities that exist. In Nova Scotia it is necessary to examine the Vital Statistics Act to see if spousal benefits have been added to a particular statute or not.

There are also some omissions I think might cause problems later on. Although the process of registration of a common-law relationship is carefully set out, the only way a relationship can be de-registered is if the parties jointly file a statement that it has come to an end. There will likely be situations where partners separate and where one of them will refuse to sign a de-registration. It should be possible for only one of the partners to file a de-registration. If there is a dispute about the propriety of a de-registration there should then be an opportunity to have the matter resolved by a judge. That option does not exist in the Nova Scotia system.

Another option would be to provide that a partnership can only be dissolved and de-registered on the order of a judge. Like divorce, the consent of both partners would make the order easy to obtain, but there would be a formally recognized end to the relationship. Similarly, if there are outstanding property and child support issues, the parties could have them resolved by a court at the same time.

De-registration could be important for an employer that continues to pay benefits to a former partner and of course keeping its records current would also be important for government and others who may have relied on the existence of a common-law partnership. There should probably be provisions permitting the recovery of unwarranted payments made after a termination has occurred and a court should have jurisdiction to deal with that as well. It should certainly be possible for a person who is asked to rely on the veracity of a marriage or a registered partnership to challenge its bona fides in court.

The Nova Scotia registration system became effective on June 4, 2001 and by December 14, 2001, 94 couples had registered. A record of the sexual orientation of the registrants is not kept but a person in the registry office believes that most who have registered to date are in a same-sex relationship.


Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part IV) Existing Systems Which Record Common-Law Associations Nova Scotia

Part IV) Existing Systems Which Record Common-Law Associations	Part IV) Ontario

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

IV. Registration of Common-Law Partnerships

Nova Scotia