There was a great variety of viewpoints on the issue of whether property rights currently available to married persons should be extended to common-law partners and if so, whether that would be best accomplished through a registration system or a system where property rights are acquired through status in the same way as rights to support are.

Many people noted that there is a commonly held belief that common-law partnerships "turn into" a marriage after a certain amount of time has passed and the common-law partners thereby acquire all of the rights of married spouses. Some people think that this time frame is 5 years, or more commonly 3 years, or even 1 year. There have been many disappointed common-law partners who have broken up or had their partner die only to find that they had no entitlement whatsoever to property. It was noted that this expectation of entitlement was not one that existed amongst same-sex common-law partners and that if the law were to change it would be desirable to do some public education in this area.

Those that spoke against extending property rights often wished to preserve these rights for spouses because marriage is "sacred" and involves a commitment that is not present in a common-law situation. Experts in this area who advocated for the unique and special treatment of marriage nevertheless admitted that court decisions were not supportive of this approach and that the special status in law of marriage was being steadily eroded. They argued that that as far as opposite-sex common-law partners were concerned, if they greatly desired property rights, then they should simply marry. Generally, those who were against the expansion of property rights to common-law partners did not support a registration system because it moves a common-law couple closer to a marriage-like relationship, again eroding the uniqueness of marriage.

Some people who spoke in favour of extending property rights to common-law partners identified the concern that an approach should be used that would "give the greatest number of people protection". This approach was most often advocated by persons and organizations with a feminist perspective who had a desire to protect the economically weaker partner. As such, a registration system was seen as less than desirable because there was a concern that many people would not think to register until they found themselves in a situation where they dearly wished they had.

Those that wished to provide protection for the economically weaker partner, nevertheless supported the notion that it should be possible to "contract out" of the legislation as spouses are currently able to do. This would ensure that partners who didn't put their mind to the issue, or who couldn't agree, would have the sharing scheme as the "default" arrangement, while still permitting those that wished to have a different arrangement for their relationship to enter into such an arrangement contractually.

Some persons resisted the extension of property rights to common-law partners for reasons of freedom of choice and personal autonomy. However, they noted that the ability to contract out would at least partially address this issue while still providing an element of protection for everyone. Certainly it was noted that there are social benefits in that persons who are entitled to property sharing at separation from, or the death of, their partner are less likely to be a drain on the public purse.

Many of the expert lawyers that we consulted with, expressed the view that the extension of property rights would "happen eventually anyway" because of the Charter. It was also noted that the present law does provide some property rights to common-law partners at common law pursuant to the laws of constructive and resulting trusts, unjust enrichment, and quantum meruit. It was noted that these laws are complicated and uneven in their application and that common-law partners have to face great uncertainty and the possibility of expensive litigation which is not required of spouses when they separate.

Within the gay and lesbian community, it was felt that the easiest solution to the extension of property rights would be to permit marriage by gays and thereby create an automatic application of all property legislation to those who chose to marry. Some members represented that the gay and lesbian community was not in favour of a registered partnership regime because such a civil union would have a lesser status than marriage and they were holding out to win the right to marry. ⁽¹³⁵⁾ Some members of the community had confidentiality concerns with a registration system because it would require partners to come "out" publicly in order to acquire these rights.

It was noted that in the gay and lesbian community, many people were decidedly unenthusiastic about the extension of property rights. For one thing, same-sex common-law partners often did not share financial resources. For another, it was noted that people are generally more enthusiastic about things that carry rights rather than responsibilities, and the extension of the property sharing scheme had an equal share of both. The economically weaker partner would acquire some rights, but at the "expense" of the economically stronger partner.

While we heard from some common-law partners who had suffered economically because of the failure of the law to afford them any protection, generally the public seems either misinformed about their rights, or unconcerned until they find themselves in the position of actually needing such protection.

Footnote

135. We were advised that there are some four cases currently before the courts wherein gays and lesbians are challenging the federal Marriage Act which restricts the right to marry to a man and a woman.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 Submissions and Consultations
V a) Property Legislation in Manitoba	V c) The Impact of the Charter of Rights
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