After examining the three areas of study mandated by the terms of reference, as well as the legislative change initiated by Bill 41 in June, 2001, I have concluded that there ought to continue to be two categories of adult relationships expressed in all Manitoba legislation: "spouses" and "common-law partners". "Spouse" should continue to have its traditional meaning, namely, a man and a woman who are married. "Common-law partner" should continue to include both opposite-sex and same-sex partners. This is to ensure maximum inclusiveness for all Manitobans, while preserving a distinct category for married persons which has existed for hundreds of years in our common law and which recognizes the uniqueness and value of this institution to society. It is also in accordance with the common-sense meaning of these terms as they are generally understood by the public. All of the recommendations in this report are informed by that basic approach.

A further underlying objective is to seek to have Manitoba legislation comply with the Canadian Charter of Rights and Freedoms. With respect to adoption this means that gays and lesbians must necessarily be extended the right to adopt jointly with their partners, and to adopt the children of their partners, in addition to the adoption rights which they currently enjoy. Any distinction in treatment from other common-law couples would not survive a Charter challenge. With respect to property rights, this means that the rights currently enjoyed only by married couples must likely be extended to persons in conjugal relationships of some permanence, similar to marriage, or risk the legislation being struck down as unconstitutional. Certainly this is the direction that our courts are moving in their interpretation of the Charter as including both marital status and sexual orientation as prohibited grounds of discrimination. Finally, with respect to conflicts legislation, it seems impossible that in a climate of extending equal rights to same-sex and opposite-sex common-law couples, we would not also require such couples to assume equal responsibilities. While a Charter challenge for a failure to include such persons in conflicts legislation is perhaps less likely as a practical matter, it is nevertheless true that such failure is almost certainly a breach of the Charter. This underlying concern with Charter compliance also informs all of the recommendations in this report.

I have also attempted to introduce some consistency in Manitoba legislation. Nowhere is this more needed than in the area of conflicts where the category of which kind of relationship gives rise to a conflict varies almost with each piece of legislation. With my recommendations, there would be only two categories of relationships: "family" and "immediate family". This objective of achieving consistency is another reason two categories of adult relationships ["spouses" and "common-law partners"] are recommended throughout. It is also why I have recommended that definitions such as "common-law partner", "family", "immediate family", and "family home", be consistent across various legislation. Finally, I have recommended that Manitoba attempt to implement a consistent criteria for achieving the status of a common-law partnership so that the peculiar and confusing situation of being considered common-law in some situations, but not others, will cease.

The last characteristic of my general approach is to recommend only as much change as is necessary to fix the problem. In the area of adoption this means that I do not recommend extending the right to adopt to "any two persons" when simply extending the right to same-sex common-law partners will fully address the issue. With property this means that I do not recommend the creation of a new registration system when the existing law, which characterizes relationships as "common-law" after living together in a conjugal relationship for a stated period, suffices. Finally, with conflicts of interest, I resist the urge to rationalize and standardize the provisions as to conflicts in various legislation and simply streamline some definitions while including common-law partners in the application.

The end result is a total of 95 recommendations affecting some 35 pieces of legislation, which gives common-law partners all of the rights and responsibilities of spouses in Manitoba legislation pertaining to adoption, conflict of interest and protection of the public interest, and property. There are some 33 statutes which will actually require legislative amendment. In Volume II those portions of each statute that require amendment are set out in table form with the existing sections of the Act opposite the recommended amendments.

Adoption is the most simple to achieve. There are only 6 recommendations affecting just 2 statutes: The Adoption Act and The Vital Statistics Act. With conflict of interest there are some 22 statutes identified as needing amendment and there are 28 recommendations setting out the specifics of those amendments. Finally, with property legislation there are 12 statutes which provide property rights either during marriage, after separation and divorce, or at death, including The Wills Act which also needs amendment as to the conflicts issue. There are some 61 recommendations for amendments to these statutes containing property rights and interests.

Manitoba should feel proud of the government having taken the time in this developing area of law to study the relevant legislation and to carefully consider an agenda for legislative change. There is more legislation that would be impacted in this move towards fuller equality for all Manitobans. I recommend that it be given the same study and care when amendments are being considered.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 V. Conclusion
V f) Property Recommendations	Terms of Reference
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