Goup Organizing for Same-Sex Issues and Principles - Comments about Manitoba's Review Panel On Common-law Relationships

 

 

 

 

GOSSIP held an informational meeting about the Hamilton-Cooper report on Tuesday May 14, 2002,
at Crossways-in-Common
Winnipeg, Manitoba.
Read about the meeting

 

 

 

 

 

 

 

 

Link to learn about a National Trust fund in support of all five marriage cases in Canada.  The only fund of its kind - please engage your funds for equality.

 

 

 

 

 

 

 


GOSSIP's Six Key Points:

  1. It is important that the term "common law partner" which includes same sex and opposite sex partners in conjugal relationships be used in otherlegislation.


  2. The Adoption Act should be amended to provide that common lawpartners can adopt each other's children or children together.


  3. The Vital Statistics Act should be amended to provide that the common law partner of a women who conceives a child by artificial insemination may be named on the birth certificate as the parent of the child and the child may be given the name of the common law partner.


  4. Conflicts of interest legislation that applies to married couples should apply with equal effect to common law partners.


  5. Property laws, in particular intestacy laws and marital property laws, should apply with equal effect to common law partnerships as they do to marital relationships.


  6. The lesbian and gay community needs to make it clear that we do not support RDPs.

 

 

 

 

 

 

 

 

Link to "Surrey Book Banning Case"

 

 

 

 

 

 

 

 

Link to "Beyond Conjugality"  The Law Commission of Canada recommends full equal marriage for same-sex couples.

 

 

 

 

 

 

 

 

Link to Canadian Human Rights Commission support for same-sex marriage

 

 

 

 

 

 

 

 

Link to "No To Bill S-9"

 

 

 

 

 

 

 

 

Link to Registered Domestic Partnership section of this website.

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Manitoba

GOSSIP

(Group Organizing for Same-Sex Issues and Principles)

Karen Busby announced the formation of Winnipeg-based GOSSIP (Group Organizing for Same-Sex Issues and Principles), in the Spring of 2002, in preparation for legislation that the Manitoba government introduced in June 2002. The group met to discuss responses to the Review Panel which the government formed to consider the issues and to work on education and lobbying in our community.

"Use this information to inform yourself, your family and friends and to lobby your MLA and the Minister of Justice," Busby recommended in an email circulated on April 29, 2002.


 


April 29, 2002

SOME THOUGHTS ON
THE HAMILTON-COOPER REPORT

(Review Panel On Common-Law Relationships)

Definition Of Common Law Partnerships

The bill passed last summer by the Manitoba government uses the term "common lawpartner" as the inclusive term for both same and opposite sex couples who are inconjugal relationships. The gay and lesbian community supported this usage in all legislative amendments because 1) it did not differentiate between opposite sex and same couples in common law partnerships and 2) it used the more inclusive (although well-understood legal term) "conjugal" to describe the relationship. Conjugality looks at a range of factors to determine whether a relationship exists and therefore does not regard any one factor as the principal indicator (like public representation as a spouse, monogamy or living together) of a relationship.


KEY POINT: It is important that the term "common law partner" which includes same sex and opposite sex partners in conjugal relationships be used in other legislation.

Adoption Rights

Both Cooper and Hamilton gave the opinion that Manitoba's adoption laws are unconstitutional because they do not permit same-sex common law couples to adopt together or each other's biological child. They made slightly different
recommendations as to legislative changes.

Hamilton would change the act to include, after the provision that married couples could adopt, that "one person or two people jointly" may adopt. Hamiliton's proposal is not favoured by anyone who has been working on this issue in our community because it 1) privileges marriage and leaves our relationships invisible, 2) is ambiguous (and therefore could be troublesome later), and 3) could result in significant and unexamined changes in adoption law, like permitting two brothers or friends to adopt. While permitting people who are not in conjugal relationships to adopt might be desirable, its effects have not been thoroughly examined and therefore such an amendment is premature.

Cooper favoured an amendment to permit "common law partners" (which would include both same sex and opposite sex partners) to adopt. Cooper's proposal is favoured by most gays and lesbians because 1) it leaves no doubt that same sex couples can adopt; 2) it treats our relationships on the same par as married relationships and 3)does not make changes which are unnecessary and, perhaps, unwise.

KEY POINT: The Adoption Act should be amended to provide that common lawpartners can adopt each other's children or children together.

The Vital Statistics Act

The Vital Statistics Act currently permits married men to be named as the father on the birth certificate of a child born to his wife where that child was conceived through artificial insemination if the wife agrees to this listing. The act is silent as to whether a social (non-biological) parent of a child
conceived by artificial insemination born to a common law partner can be named on a birth certificate.

Practically speaking, if a social father was named, it is unlikely that this registration would be challenged and the certificate would be issued. However lesbians who have tried to register a child listing the name of the social mother on the line where the name of the father is to appear have had the registrations rejected. Because birth certificates are a primary source of identification, lesbian couples who have children through artificial insemination want to have both parents listed from the time of birth. For example, without this kind of identification, it is almost impossible for a social mother to travel by air or cross an international boundary with her child.

As well children born to lesbian couples cannot be given the last name of the social mother. The child must be given the biological mother's name and then an application for change of name (including fee payments) must be made.

BC has similar provisions and last summer, the BC Human Rights Tribunal held that they violated the BC Human Rights Code. In addition to challenging the Manitoba's adoption laws, the four lesbian couples who have sued the Manitoba
government have also challenged the birth registration and naming provisions in The Vital Statistics Act. They are unlikely to agree to a settlement of the case without this issue also being settled.

While Hamilton/Cooper panel knew about the BC case and was asked to recommend that these two provisions in The Vital Statistics Act be changed, the report is silent on this issue. Since NOW is the time when the government will
comprehensively deal with gay and lesbian relationship and parenting legal issues, it make sense to clean up the provisions in The Vital Statistics Act at this time.

KEY POINT: The Vital Statistics Act should be amended to provide that the common law partner of a women who conceives a child by artificial insemination may be named on the birth certificate as the parent of the child and the child may be given the name of the common law partner.

Conflicts of Interest

It is widely, if not unanimously, recognized that gays and lesbians in public office and public administration must be required to make the same declarations of potential conflicts of interest as any other official. While such a declaration may, in effect, out a gay or lesbian person who does not want to be
outed, we accept that rationales for such disclosures are more important than protecting privacy interests in this context. Hamilton and Cooper come to similar conclusions on the conflicts of interests issue.

KEY POINT: Conflicts of interest legislation that applies to married couples should apply with equal effect to common law partners.

Property Division on the Breakdown of Relationships

There is a growing consensus amongst lesbians and gay men that the same rules that apply to married persons concerning the division of property on the death of a partner (including where a partner dies intestate (i.e.., without a will)) or breakdown of a relationship should apply to common law relationships.

As every family law lawyer can tell you, most people in common law opposite sex relationships operate under a belief that they have the same rights as married people on death or dissolution and only realize the harsh truth when a partner dies or the relationship ends. (A common law partner is considered by law to be a stranger with no entitlements on their partner's death and they have few and
difficult to enforce rights concerning property on the breakdown of the relationship.) In principle, the law should reflect what people believe it to be.

Moreover, marital property laws were designed to protect the more financially vulnerable member, usually the woman, in a partnership by ensuring that her contributions to the financial well-being of the relationship are well recognized and by providing a clear and expeditious method of resolving issues if the relationship breaks down. These same considerations apply with equal force to all common law-both same and opposite sex--relationships. Some people in common law relationships may have chosen this form of relationship because they don't want their relationship "colonized" by law. But if the parties do not make a formal agreement about what will happen if the relationship breaks down (i.e.., the vast majority of people whether they are married or living common law), the law sets out what will happen in the absence of such an agreement. The practical difference between the two current regimes is that the common law regime favours the financially stronger party and the marital property regime favours the financially weaker party.

The Manitoba marital property regime provides that the parties can easily agree to opt out of the presumption of equal division at any time. A simple written agreement which the parties can prepare themselves, clearly indicating an
intention not to be bound by the regime which is signed by both parties is all that is required to opt out. Some people are concerned that they run the risk of having to share the family jewels with every Tom, Dick or Mary they sleep with.
This is not the case. With some exceptions, property division rules only apply to property acquired during the relationship and any legislative amendment will require that the parties have had a conjugal relationship for one to three years, probably the latter in Manitoba.

The issue of whether the failure to include common law opposite sex partners in marital property regimes violated the equality provisions of the Charter is currently before the Supreme Court of Canada and should be decided later this
year. There is a good chance--although these things are hard to predict--that the Court will hold that the law must include common law opposite sex couples. The judgment is unlikely to be clear on application to same sex partners. Even if the Court does not hold that different treatment of common law partners violates the Charter, there are still good policy reasons for governments to include common law partnerships (both same and opposite sex) in property
division and intestacy laws. Saskatchewan has already changed its property laws to include all common law partnerships.

Cooper recommended comprehensive revisions to property law to treat all common law relationships in the same way as married relationships. Many gays and lesbians in Manitoba, as well as many feminist groups, would support these
changes regardless of whether or not they are constitutionally required.

KEY POINT: Property laws, in particular intestacy laws and marital property laws, should apply with equal effect to common law partnerships as they do to marital relationships.

Registered Domestic Partnerships

While Hamilton recommended a form of Registered Domestic Partnership (RDP) there is now strong opposition to the use of a Registered Domestic Partnership regime, ie., a regime which permits two people, whether or not they are in a conjugal relationships, to register their relationship thereby signalling an intention to equally divide property. Various reasons are given for this opposition:

1) It creates a hierarchy of relationships, maintaining the special privilege accorded to heterosexual marriage;

2) Most couples--same or opposite-sex--won't bother with registering and therefore the system will not address the problems noted above with property division issues. For example, common law partners can currently register with
the federal government to share certain pension benefits--but most lawyers don't even know about this registration system and almost no one has registered to take advantage of it.

3) Because RDPs will create a third class of conjugal relationships, it will create uncertainty in the established law on unregistered common law relationships. For example, if the relationship is unregistered is it less likely that employment benefits will flow to partners? is it less likely that an in loco parentis relationship would have been created? etc.

4) The enactment of RDP regimes may undermine the efforts being made by some lesbians and gay men to change marriage laws. A law which denies equality is constitutionally permissible if the government can show that the denial is
reasonable and justifiable. If governments pass RDP regimes, they will then argue that this regime is a reasonable substitute for marriage--and this argument could win the day.

The only advantage of an RDP is that it gives a fixed date on which the relationship becomes legally established and for some limited situations this certainty is desirable. Some people think that it is also a mechanism which might be used to create immediate relationship recognition, especially for those who cannot marry, rather than, for example, requiring that the partnership has endured for some time period usually between one and three years) before being legally recognized. However, since most benefits statutes (like those changed last summer and the federal statutes) specify a time period for qualification, these explicit provisions will not be displaced by an RDP registration unless all of the benefits statutes are also changed. And parties could opt into a
marital property regime earlier in their relationship if they chose. So these benefits are mostly illusory.

KEY POINT: The lesbian and gay community needs to make it clear that we do not support RDPs.


Related Links:
Manitoba Government Press Release - March 21, 2002
The Review Panel's Reports
Registration of Common-law Relationships - December 21, 2001