Although there is some opposition amongst Manitobans to the extension of full adoption rights to same-sex couples, it is the opinion of this writer that, short of invoking the notwithstanding clause which is certainly not recommended, the government has no choice but to amend the legislation to extend these rights. A court case which defended the existing legislation would undoubtedly be lost. Not only would it inconvenience the citizens who are forced to initiate such a challenge in order to obtain benefits which are rightfully theirs in law, but it would likely expose the citizens of Manitoba to a significant costs order.

In amending our Adoption Act, I do not recommend the use of the legislative model that would permit "any two adults" to adopt. There is clearly some discomfort on the part of some citizens in Manitoba with changing the traditional definition of parents to include two persons in a loving, conjugal relationship who are of the same gender. To extend the definition of parents to two persons who are not in a conjugal relationship, who do not share economic resources or see themselves as life partners, and who perhaps do not even live in the same home, would undoubtedly create even more discomfort. Further, there is no expressed need in Manitoba for this type of adoption. Finally, extending the definition of a parent in this way is not necessary to ensure Charter compliance.

I recommend that the legislative model to be used be our present model, extended to fully include homosexual persons in its provisions. The only Charter problem is the fact that homosexual persons are excluded from the full benefits of the Adoption Act. I recommend that the legislation be amended only to the extent necessary to cure this Charter problem. This would include permitting homosexual couples who are cohabiting in conjugal relationships of some permanence to be able to jointly adopt a child. It would also include the right of one member of a same-sex couple to apply to adopt the child or extended family member of his or her partner, which child they would have already been parenting.

It could be argued that the broader model of "any two adults" has the benefit of simplicity, but this is not the objective of the legislation in my opinion. Even if it were, the model which I recommend requires surprisingly little change to meet the objective of Charter compliance, and it has the benefit of being the model with which Manitobans are already familiar.

The legislative changes required to implement these recommendations are set out below, together with an analysis of their necessity and the reasoning behind the wording proposed. The recommended changes are summarized page "Summary of Recommendations", and the specific wording which I recommend is set out in table form in Schedule 5.

The Adoption Act - s. 1 - The definition of "extended family" in section 1 would need to be amended to include not only opposite-sex common-law partners, but also same-sex common-law partners. At minimum the requirement that the common-law partner be someone "of the opposite-sex" should be deleted. However, I would recommend that the government go further and provide a definition of common-law partner which is inclusive of same-sex couples so that it is made clear in the legislation that adoption by such persons is clearly contemplated.

I would further recommend that the definition of common-law partner, to the extent applicable, be the same as the definition that was used in the 10 pieces of legislation amended by Bill 41 in June, 2001. In my opinion, where possible legislation within Manitoba should be consistent with other legislation affecting the same group of citizens, particularly when that legislation deals with the criteria necessary in order to obtain rights and benefits.

Bill 41 defined a common-law partner as a person who, not being married to the other person, cohabited with him or her in a conjugal relationship for a prescribed period of either 1 year or 3 years depending upon the legislation. The only difference in the definition in the Adoption Act would be that instead of requiring the common-law partnership to have subsisted for 1 year or 3 years as set out in those other Acts, the union would simply have to be "of some permanence". This is the test which is applied to opposite-sex common-law partners in the Adoption Act and which should therefore apply consistently to all common-law couples, regardless of sexual orientation.

The result would be that the definition of "extended family" in section 1 would include certain family members and their spouses or common-law partners, with common-law partner to be defined as follows:

"common-law partner" of a person means a person who, not being married to the other person, cohabits with him or her in a conjugal relationship of some permanence.

Changing the definition of extended family would enable homosexual persons to be able to apply for Division 5 "extended family" adoptions, namely, for the adoption of children who are related by blood or adoption to their partner.

The Adoption Act - s. 36 - This section is contained in the part of the Adoption Act pertaining to the adoption of children who are permanent wards of Child and Family Services. The section would need to be amended by substituting "common-law partners" for the current description of "a man and a woman who are not married but are cohabiting as spouses" as one of the types of joint applications permitted. This would enable homosexual persons who are living in a conjugal relationship of some permanence to jointly apply to adopt a permanent ward under Division 1 of the Adoption Act. Because Division 3 of the Adoption Act pertaining to the adoption of a child from another country incorporates the provisions of Division 1, this amendment would open adoptions under Division 3 of the Adoption Act to homosexual persons as well.

The Adoption Act - s. 73(1) - This section is contained in the part of the Adoption Act pertaining to the adoption of children that the applicant has in fact been parenting for at least 2 years. The section would need to be amended by substituting "common-law partners" for the current description of "a man and woman who are not married but are cohabiting as spouses" as one of the types of joint applications permitted. This would enable homosexual persons who are living in a conjugal relationship of some permanence to jointly adopt a child that they have been parenting together under Division 4 of the Adoption Act.

The Adoption Act - s. 88 - This section is contained in the part of the Adoption Act pertaining to the adoption of the child of an applicant's partner. The section would need to be amended by removing the phrase "is cohabiting with the parent of a child and is of the opposite-sex to the parent" from the description of who may apply to adopt under this section and substituting "a common-law partner" of the parent of a child. This would enable homosexual persons to apply to adopt the child of their partner under Division 6 of the Adoption Act. The descriptive heading for this Division should also be amended to reflect more inclusive language.

The Adoption Act - regulations - The Declaration in Form AA-14, which a cohabiting couple must complete in order to demonstrate their commitment as a couple, should be amended by removing the reference to "husband and wife" and replacing it with a reference to "common-law partners. The important aspect of this declaration is to ensure that joint applicants have a commitment to their relationship on a permanent basis. This change would preserve that objective while making it inclusive for same-sex couples, thereby enabling them to jointly adopt children under the Division 2 private adoption provisions of the Adoption Act.

The Vital Statistics Act - regulations - The forms would have to be amended to delete the references to "mother" "father" and "husband" and replace them with a gender neutral word like "parent", at least as an option. The following forms need attention:

• Form 3 - Request to Register a Child in a Hyphenated or Combined Name;
• Form 4 - Registration of Birth (including the instructions to parent or guardian);
• Form 4A - Registration of Stillbirth;
• Form 6 - Joint Request by Parents;
• Form 9 - Request to Amend Registration;
• Form 11 - Birth Certificate - paper form; and
• Form 16 - Application Form.

This would enable a child to be registered with two parents of the same gender.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 Analysis
III d) Legislative Approaches in Other Jurisdictions	III f) Adoption 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