I. Executive Summary

A. Introduction

The writer was retained together with A. J. Hamilton to give advice about three issues concerning persons in common-law relationships: adoption, conflict of interest and protection of the public interest, and property legislation. After inviting written submissions, conducting in person consultations, and reviewing the current law in Manitoba as well as in other provinces, the following advice is given.

B. Adoption

In Manitoba the only way to adopt a child is through an application to Court pursuant to The Adoption Act. Heterosexuals can apply individually to adopt any child. Gays and lesbians can also apply individually to adopt a child, but not the child or extended family member of their partner. Further, although spouses and common-law opposite-sex partners can apply jointly to adopt a child, gays and lesbians cannot apply jointly to adopt a child, even a child that they have been jointly parenting.

These provisions of The Adoption Act as they pertain to homosexuals would not survive a challenge under the Canadian Charter of Rights and Freedoms, ["the Charter"] because they deny citizens equal rights to adopt based solely upon sexual orientation. The Supreme Court of Canada has found sexual orientation to be an irrelevant personal characteristic which is analogous to the other characteristics set out in section 15 of the Charter. Restrictions on Charter rights may be justified under section 1 of the Charter if they constitute a reasonable limit in a free and democratic society. However, in my opinion there is no justification for this unequal treatment, particularly in light of the fact that the Adoption Act does permit some adoption by gays and lesbians. Further, the fact that some children are denied the benefit of having two legal parents is in conflict with the stated objectives of the Adoption Act to give paramount consideration in every respect to the child's best interests.

In Manitoba there is a vocal minority who strongly oppose adoption by gays and lesbians, based upon the conviction that children are better off with two parents, one of each gender. There are also strong advocates for the rights of gays and lesbians to have greater rights to adopt. These citizens believe just as strongly that it is in the best interests of the children to receive the love and support which many gay and lesbians are prepared to offer.

Many persons seem unaware that homosexuals are in fact able to adopt children in Manitoba, albeit only as individuals and not as a couple. Many are also unaware that there are more children in Manitoba wishing to be adopted than there are suitable parents, particularly for older or special needs children. Adoption applications by persons identifying themselves as homosexuals have been relatively recent, (within the past 4 or 5 years only), and quite infrequent (perhaps a half dozen applications). Many homosexual persons choose other ways of caring for children such as fostering, teaching, and volunteering with youth.

Other provinces with similar legislation have in recent years amended it in order to permit homosexuals to adopt on the same basis as heterosexuals. There has also been some case law which has changed the practice in certain provinces. Presently, gays and lesbians have received recognition for adoption purposes in B.C., Alberta, Saskatchewan, Ontario, Quebec, and Nova Scotia with legislation in progress in Newfoundland.

If Manitoba chooses to amend the Adoption Act, there are two legislative models which would comply with the Charter. The first would be to simply extend the current legislative model to fully include homosexuals. This would mean that a homosexual person living in a conjugal relationship of some permanence with their same-sex partner could apply jointly with that partner to adopt a child on the same basis as opposite-sex common-law partners. It would also mean that a homosexual person could apply to adopt the biological child or extended family member of their same-sex partner in the same way that a heterosexual person in a common-law relationship can apply.

Alternatively, Manitoba could enact a model which takes a new and broader approach to adoption. The legislation could be amended to permit any adult to apply to adopt a child, either individually or together with any other adult. This would mean that two persons would be free to adopt a child whether or not they were living in a conjugal relationship, and regardless of their relationship to one another. This is the route which B.C. and Newfoundland, for example, have chosen to follow. It is a considerably broader approach than is necessary in order to cure the Charter problem.

I recommend that the legislation be amended so as to extend the right to apply to adopt only as far as is necessary in order to ensure Charter compliance, namely, to permit homosexual persons to adopt on the same basis as heterosexual persons.

C. Conflicts of Interest and Protection of the Public Interest

Manitoba has a variety of statutes governing conflict of interest for members of the legislature, city and municipal councillors, school trustees, and citizens serving on publicly appointed boards and committees. They generally require disclosure of a conflict and then non-participation in the decision-making concerning the issue. For public officials there is the additional requirement of advance disclosure of assets and interests to another public servant on a confidential basis. There are also a number of provisions in Manitoba legislation which are designed to protect the public interest. All of this legislation includes spouses and none includes same-sex common-law partners. Some includes opposite-sex common-law partners, utilizing a variety of definitions of what constitutes a common-law relationship.

There is a strong consensus among the public that these provisions need to be extended to common-law partners, including same-sex common-law partners, even among those members of the public who are strong advocates both for and against the rights of homosexuals.

I recommend that all relevant legislation be amended so as to include common-law partners in its application. While new disclosure provisions may discourage some persons in same-sex partnerships from seeking or holding public office, this concern will likely be temporary and is outweighed by the greater objective that decision-making in the public interest be made, and be seen to be made, without fear of improper bias or influence.

The criteria as to whom the conflict provisions should apply should be standardized as far as possible. This would ensure equal treatment among Manitobans regardless of the nature of their public service. It would also facilitate general understanding of, and increased compliance with, conflict of interest provisions. The test for a common-law partner should be modernized by removing the reference to the requirement that the person be a dependent or be held out as a spouse, and by including same-sex common-law partners.

D. Property Legislation

Manitoba has extensive property legislation giving spouses the right to acquire an interest in, or share the property of, their partner at death or dissolution of the relationship. This legislation excludes common-law partners, both same-sex and opposite-sex.

These provisions in Manitoba's property legislation may not survive a challenge under the Charter because they deny citizens equal rights based solely upon marital status and, in some cases, sexual orientation as well. The Supreme Court of Canada has found both marital status and sexual orientation to be irrelevant personal characteristics which are analogous to the other characteristics set out in section 15 of the Charter. Restrictions on Charter rights may be justified under section 1 of the Charter if they constitute a reasonable limit in a free and democratic society. However, in my opinion it would be difficult to justify this unequal treatment.

As a result, it may be advisable for the government of Manitoba to amend the legislation to include common-law partners before it is challenged. If the government wishes to wait, the issue will shortly be clarified by the Supreme Court of Canada in the case of Walsh v Bona on appeal from Nova Scotia, to be heard in Spring, 2002.

There is no general public consensus about whether or not property rights ought to be extended to include common-law partners. Few opposite-sex common-law partners spoke out on this issue. As far as same-sex common-law partners, the community is divided with some members preferring to have partners remain economically independent and others supporting this extension of rights. Organizations and individuals with a more feminist orientation support this extension of rights since it most benefits the economically weaker partner, which in heterosexual relationships is normally the woman. As with adoption, those individuals and organizations who support the importance of marriage are reluctant to see rights which normally only apply to spouses be extended to those who are "merely" living together. Those that have discomfort with the gay/lesbian lifestyle are opposed to property rights including same-sex common-law partners as it may appear to be an endorsement of that lifestyle.

If the government chooses to amend the legislation, there are two models which can be utilized to extend property rights to common-law partners. Either model would comply with the Charter. The first is a registration model whereby property rights and responsibilities are acquired if the partners publicly register their relationship. This is the model recently enacted by Nova Scotia. It is also being proposed by Quebec in a recent Bill tabled in the National Assembly, albeit only in relation to same-sex partners. This model has the advantage of a clear start date for the relationship, and no one acquires the rights or responsibilities unless they consent.

The second alternative is a model whereby property rights and responsibilities are acquired once certain criteria are met. This is the model used in the Saskatchewan legislation where persons who have lived together for 2 years in a conjugal relationship acquire the property rights of spouses. This is also the model which Manitoba legislation uses to cause common-law partners to acquire rights to spousal support and pension benefits. It is also the model used by the other common-law provinces, and the federal government, when rights and responsibilities within their jurisdictions are given or ascribed to common-law partners.

This is the model which I recommend be used to extend property rights and responsibilities in Manitoba whether acquired during marriage, after its termination, or upon the death of one of the spouses. I recommend that the criteria for the acquisition of these rights be the same as for spousal support, namely, 3 years of living together, or 1 year if there is a child of the union, and that they apply equally to same-sex partnerships.

E. Conclusion

Volume I of the report contains a total of 95 recommendations affecting some 35 pieces of legislation. Volume II contains those portions of the 33 statutes which require amendment set out in table form with the existing sections of the Act opposite the recommended amendments. These recommendations give common-law partners the rights and responsibilities of spouses as they pertain to adoption, conflict of interest and protection of the public interest, and property legislation.


Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 *I) Executive Summary*

Table of Contents	II) Introduction

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