held an informational meeting about the Hamilton-Cooper report on Tuesday May
(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
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.
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
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
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
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.
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
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
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
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
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.
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
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.
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
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
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
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;
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
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.
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
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
KEY POINT: The lesbian and gay community needs to make it clear that we do not support RDPs.