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(Proposed Statute Amendments)
D. Legislative Approaches in Other Jurisdictions
There are only 2 jurisdictions in Canada which have extended property rights to common-law partners through legislative initiatives: Nova Scotia and Saskatchewan. In addition, since the terms of reference were established, a third province, namely Quebec, has moved to extend property rights to same-sex common-law partners through a system of registration. As a result, the Quebec approach is included in the following discussion, in addition to a review of the Saskatchewan and Nova Scotia approaches.
On November 30, 2000, The Law Reform (2000) Act received Royal Assent in the Province of Nova Scotia. That Act, entitled "An Act to Comply with Certain Court Decisions and to Modernize and Reform Laws in the Province" extended certain legal rights to common-law same-sex as well as opposite-sex partners. With respect to property, common-law partners were given the same rights and obligations as spouses under several Acts concerning the division of property upon separation and death (142), but only in the event that the partners have chosen to execute a "domestic-partner declaration" in a prescribed form. Those persons who would otherwise meet the definition of a common-law partner, but who have not executed the necessary declaration, are not subject to the rights and responsibilities under the law.
The Vital Statistics Act (143) was also amended in this omnibus legislation to permit for registration of domestic partnerships. Registration is accomplished in a similar way to the registration of births, deaths, marriages, and changes of name in the Province. The partners complete a Declaration in a prescribed form in front of witnesses which, together with a prescribed fee, is then submitted to the Registrar of Vital Statistics for registration (144). Registration of the domestic partnership means that the partners have the same rights and responsibilities as spouses under a variety of Acts, both as between themselves and with respect to any other persons. If the partners sign but do not register the partnership declaration, then it is only effective as between themselves (145).
A domestic partnership may be registered by any two, otherwise unmarried, adults who are cohabiting or intend to cohabit in a conjugal relationship. (146) This domestic partnership declaration is binding until terminated. The Registrar will register a termination of the domestic partnership:
The legislation became effective on June 4, 2001. As of December 21, 2001 after over six months of operation, there had been only 94 domestic partnerships registered, compared to the approximately 5500 marriages registered in any given year in that province. There appears to have been an initial flurry of registrations which has since died down. The following represents the registrations, month by month, during 2001:
Furthermore, it appears that opposite-sex partners are particularly making very little use of the registration system. Of the 94 registrations, only 11 [or about 12%], were opposite-sex couples, with the vast majority being same-sex couples who are not otherwise entitled to marry. (148)
On May 30, 2001, Saskatchewan introduced two bills, namely, An Act to amend certain Statutes respecting Domestic Relations (No.1) and (No. 2), which Acts are now in force having amended some 15 pieces of legislation. This included the amendment of various property legislation including the Matrimonial Property Act, The Homesteads Act, The Intestate Succession Act, The Wills Act, and various pension legislation including The Municipal Employees' Pension Act, The Pension Benefits Act, The Public Employees Pension Plan Act, and The Saskatchewan Pension Plan Act.
In all Acts, "spouse" is redefined to include a person with whom an individual has cohabited continuously for a period of not less than 24 months. There is no requirement that the couple be comprised of a man and a woman and hence same-sex partners are included in the definition. Saskatchewan is the only jurisdiction in Canada which has opted not to retain a separate category in it's legislation for spouses.
The Saskatchewan government chose 24 months as both the qualifying period for acquiring the status of common-law partnership, and the period after which certain rights expire for common-law partners. For example, homestead rights extended to common-law partners are deemed to be terminated once the common-law partners have not cohabited for 24 months. The right to apply for a division of marital property after separation expires after 24 months of separation. Certain presumptions as to benefits under intestate succession do not apply if the common-law partners have not cohabited for the past 24 months. A will is not revoked by a common-law partnership if the partners have been separated for more than 24 months.
Common-law partners in Saskatchewan do not need to register their relationship or take any other active step in order to acquire the legal status of spouse. The mere passage of time gives them the same rights and responsibilities as spouses.
Despite this omnibus legislation, a large number of statutes which use the term "spouse" were left un-amended. The government was of the view that, as a result of the Charter, the courts will interpret the word "spouse" to include both same-sex and opposite-sex unmarried partners, and as such it was unnecessary to amend the legislation (149).
On December 12, 2001, Quebec introduced a draft Bill entitled "An Act instituting same-sex civil unions and amending the Civil Code and other legislative provisions" (150). The Bill is expected to be considered by the National Assembly in January or February, 2002.
This legislative scheme would give same-sex common-law partners who choose to register their relationship the vast majority of the rights and responsibilities in law of spouses. This includes the same matrimonial property regime which applies to spouses upon separation or divorce, the same rights to the family home and to pension sharing as for a married couple, and the same laws regarding legal succession in the event of death (151).
The registration process is not available to opposite-sex common-law partners who are expected to marry if they should wish to acquire these rights and responsibilities. Since same-sex partners cannot marry in Quebec, [or anywhere else in Canada], the government has provided a civil union alternative.
One essential difference from marriage is that a same-sex civil union can be dissolved more easily. If there are no children of the relationship, the parties can simply agree to terminate the union and go before a notary to confirm their agreement (152). With marriage, the parties must seek an order of a Court.