In the provision of my advice and recommendations to the Minister of Justice and Government of Manitoba, I have attempted to deal with the questions put to my colleague and me. In addition, I have dealt with other matters to which those questions lead in the hope that my comments and analysis will provide a basis upon which government can further examine the issues and decide what direction it wishes to take.

Some of the topics we were asked to address were not ones that had come before me as a judge. Although I had some experience with adoption, I was not familiar with the detailed work done in every case by a Child and Family Services Agency or the other organizations that are involved in assisting those wishing to place a child for adoption or those hoping to adopt a child. I had a general understanding there were more children in need of a good home than there are people willing to adopt, but the information provided during our consultations clearly indicated a considerable and growing need.

The comments of judges who have recently considered applications to adopt and who have commented on the expert testimony they have heard, were important to my understanding of how same-sex couples are being accepted as appropriate adoptive parents. Even without considering the arguments presented to us, the existing judicial authority leaves no doubt about the ability of some same-sex common-law couples to be good adoptive parents.

As I studied the cases it became evident that the law, when dealing with discrimination and equality, is developing at a rapid pace. The Supreme Court of Canada stated in M. v. H. that advantages provided to heterosexual common-law couples must also be provided to same-sex common-law couples. By the time Law v. Canada was released, the court was speaking of providing common-law and married couples with the same rights. Its comments on stereotyping and the resulting discrimination have had a direct bearing on the issues I have examined and the recommendations I have made.

The Supreme Court decision in M. v. H. caused the federal parliament and provincial legislatures to change their statutes to treat opposite-sex common-law couples and couples of the same sex in the same manner and to provide them with equivalent rights and responsibilities. The second round of cases now underway has not yet been completed. In my opinion the next decisions of the Supreme Court will require all people, whether they are married or living common-law to be given the same rights. The re-hearing and unanimous decision of the Court in Law v. Canada is as clear a statement of the law I can imagine, short of dealing with a specific case. In any event, that case should alert parliament and provincial legislatures to the necessity of examining their statutes once again.

If I am correct in my prediction, there will be a great deal of work to be done by departmental lawyers and legislative counsel. All provincial legislation, whether it deals with property-related or other matters will have to be reviewed to see that every Act and every provision deals with everyone on the same basis. Some difficult decisions will have to be made and some imaginative drafting will be necessary to achieve the required result.

In the meantime, most statutes can be saved from attack by making minimal changes. The addition of a few words here and there should provide the same rights to spouses and common-law partners but, as I suggested when discussing property, more extensive changes will be required to make certain that every person, including children, married couples and common-law partners have the identical rights and benefits.

The Law v. Canada case makes it clear that it is up to each legislative body to apply its authority in any manner it thinks appropriate. The Supreme Court has defined the parameters and principles that should be reflected in legislation, but has left the detailed decision on what to do to parliament and to the provinces and territories.

In the short run I suggest the Province of Manitoba re-examine its property legislation, including the amendments it passed in Bill 41, to make certain no one is deprived of rights and benefits that are accorded to others, based on distinctions that have nothing to do with the purpose and intent of each Act. In particular, I suggest it remove the distinctions that differentiate between married and common-law couples, and between common-law couples on the basis of whether there is a child in their household or not. If my first suggestion of complete equality is accepted it will of course not be necessary to deal further with the discrimination between different common-law couples.

The registration of common-law partnerships which arose during our discussions raised a number of issues which bore directly on the adoption process and how the equalization of property rights might be achieved. I was surprised to discover the extent to which the registration of common-law partnerships would answer questions raised by statutory requirements. When dealing with property-related statutes and benefits I found that I was continuously asking myself how the existence of a common-law partnership could be proved. That is one reason that led me to recommend the registration of common-law relationships. The other is my belief that registration would provide a substantial degree of legitimacy and official recognition to those that are now marginalized and deprived of rights accorded to others.

My review of the issues and the law, I must admit, took me in directions I had not anticipated. They took me into areas I would not have considered possible if it were not for the directives provided by the Supreme Court of Canada.

In this new and difficult area of equality, the onus falls on government to devise its legislation in a way that will protect it from a Charter challenge. The courts, including the courts of Manitoba and the Supreme Court of Canada, will not interfere with legislation as long as it provides every person with the same rights and responsibilities. It will nevertheless fall to government to decide whether it wishes to introduce such as system. If it decides to proceed a great deal of work will be required of its staff to devise a system that will meet the concerns government wishes to address.

In closing I thank those who gave generously of their time and ideas by coming to speak with us. Apart from the few who wished to remain anonymous, their names appear in a schedule to this report. I thank Jennifer Cooper for the work we did together and Laurie Messer for the research and administrative work she did on our behalf. I also thank Joan MacPhail Q.C. and others in government who provided information and issues for us to explore. All were of inestimable value in what turned out to be an interesting but lengthy and difficult study.

In my opinion, the Supreme Court of Canada has done the country a favour by raising the same-sex question to one of fairness and equality. It has approached a very delicate topic on the basis of law and principle. It has reminded us of the need for tolerance and respect for the differences that exist in society. The Court has shown us that the world is changing and that the law must react to those changes in a responsible manner.

The government of Manitoba has options that were not available to me. By having to provide my opinion by December 31, 2001, I had to enter the dangerous world of speculation. I have indicated the direction in which I believe the Supreme Court is moving and the ultimate position at which I think it will arrive. The government may, if it wishes, wait to see what the Supreme Court actually does in the Walsh v. Bona appeal, or in another case, on the major question of whether legislation must treat all married and common-law people identically.

It has not been necessary for me to "take sides" on the issues I have examined, although I heard strong positions expressed on both sides of the question of gay and lesbian rights. While I understood the sincere moral arguments that were presented to us I tried to look beyond them, to apply the law, and to concentrate on the legitimate needs of common-law couples and the children being cared for by them. I have tried to follow the lead provided by the courts to arrive at an opinion that is based on Justice and the Rule of Law.

All of which is respectfully submitted to the Minister of Justice, Province of Manitoba, this 21^st day of December, 2001.

Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part IV) Registration of Common-Law Partnerships Conclusion
Part IV) Manitoba Common-Law Registry	Schedule A List of 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