» Final Report «
Part I of my report advises the Minister there are a number of discriminatory provisions in the Adoption Act which would not withstand a Charter challenge and will have to be amended. I review Supreme Court decisions dealing with the point, and the methods used by other provinces to correct their legislation. I recommend against following their approaches and prefer the method, if not the wording, used in Bill 41.
The Manitoba Act should be amended to enable any adult to at least apply, alone or jointly with another to adopt a child, and if found suitable by a court, to be granted an order of adoption. I describe the care that is now taken before anyone is allowed to adopt a child and set out some of the expert testimony on the suitability of same sex couples to adopt that appears in reported cases from other provinces.
Part II discusses the purpose of conflict of interest rules and how they protect the public interest. It reviews the Acts that deal with the responsibilities of elected members of the legislature, city and municipal councillors and school trustees. As I do with respect to each topic, I refer to the attitudes of those we consulted. During the discussion of this topic, gays, lesbians, those supporting the traditional family, school trustees and a member of the legislature, were unanimous in their belief that the rules requiring the filing of a statement of assets and declaring a conflict of interest when it arises, should be the same for everyone. I agree.
Part III contains a lengthy review of Supreme Court of Canada decisions dealing with the stereotyping of, and discrimination against, gays, lesbians and others who have been marginalized in the past. The cases, particularly the most recent unanimous decision in Law v. Canada, indicate why legislative discrimination is unacceptable. That case establishes guidelines and a process for the courts and others to follow when an allegedly discriminatory legislative provision is questioned.
There are a number of provisions in Manitoba statutes that discriminate against common-law relationships and would not withstand a Charter challenge. I propose a two-stage approach to correct the problem. The first is to make some immediate amendments to correct the most obvious problems. The second is to do a careful review of all statutes to remove any distinctions that exist between the rights of married and common-law couples, as well as all distinctions between the rights of children born to, or raised by, common-law and married couples.
During a discussion of the equal rights of all children, and because of the Supreme Court decision in Chartier, I recommend the term in loco parentis be removed from Manitoba statutes and be replaced with "an adult who has acted as a parent toward a child." That would, I hope, confirm that any person or couple that is raising a child is responsible for its continuing support, even after a partnership dissolves, and to inheritance benefits as well. It is important to put an end to the ability of a common-law partner to abandon and disavow support for a child he or she has helped to raise. The provision "who has acted as a parent toward a child" should also indicate the point at which those living in a common-law relationship assume parental responsibilities.
Although I do not deal with every statute requiring attention, I provide examples of the sort of amendments that are needed. I analyze the wordings used in the Bill 41 amendments and suggest they remain discriminatory and in need of amendment again. I recommend that all statutes, where the terms are used, contain identical definitions of "spouse" "common-law partner" "conjugal relationship" and "family."
Part IV discusses the benefits of a system that will permit all common-law couples, including those where one of the parties is still married to another, to register their common-law partnerships. The Nova Scotia amendments to its Vital Statistics Act, the Civil Union statute that exists in Vermont and the "avant projet" that would establish a Civil Union in Quebec, are all discussed. I suggest Manitoba not adopt any of those systems at the present time, but I do recommend Manitoba establish its own form of Common-Law Registry.
In my opinion, those who choose to register their relationship would be declaring its permanence and stability, and the registration in itself should rebut the assumption of many people that those characteristics do not apply to a common-law relationship. A certificate of registration, issued by Vital Statistics, would provide prima facie proof of the relationship and allow schools, hospitals and others to accept a consent to a procedure or direction from a legally recognized representative.
The availability of proof would certainly be of advantage when dealing with employee benefits and interests in real property in a Land Titles Office. I assume employers would welcome the availability of proof of the existence of a common-law partnership as well. The use of a common-law registry would not interfere with marriage in any way, or the rights and responsibilities that flow from that institution.