Review Panel on Common Law Relationships

The Civil Union system in Vermont, that was brought to our attention by the Manitoba Human Rights Commission, is very comprehensive and permits same-sex couples to enter into a formal state-supported relationship. As The Vermont Guide to Civil Unions explains, "This law permits eligible couples of the same sex to be joined in civil union."

It permits a same-sex couple to obtain a license, deliver it to an official authorized to certify a civil union - a judge, justice of the peace or member of the clergy, and a ceremony of union may then take place. A possible form of ceremony is included in the explanatory literature. It contains wordings such as:

Will you have __ ___ to be united as one in your civil union? I ___take you_ ___to be my spouse in our civil union, to have and to hold from this day on, for better, for worse, for richer, for poorer, to love and to cherish forever. The officiating person concludes the ceremony (which may adjusted as the parties wish) by saying "I hereby join you in civil union."

The state's interest in civil marriage is to encourage close and caring families, and to protect all family members from the economic and social consequences of abandonment and divorce, focusing on those who have been especially at risk.

1(7) The state has a strong interest in promoting stable and lasting families, including families based upon a same-sex couple.

1202 Where a civil union is to be established in Vermont, it shall be necessary that the parties to a civil union satisfy all of the following criteria:

Not be a party to another civil union or a marriage.
Be of the same sex and therefore excluded from the marriage laws of this state.

1204

Parties to a civil union shall have all of the same benefits, protections and responsibilities under law whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.
A party to a civil union shall be included in any definition or use of the term "spouse," "family," "immediate family," "dependent," "next-of-kin," and other terms that denote the spousal relationship as those terms are used throughout the law.
Parties to a civil union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.
The law of domestic relations, including annulment, separation and divorce, child custody and support and property division and maintenance shall apply to parties to a civil union.

1206 Dissolution of Civil Unions

The family court shall have jurisdiction over all proceedings relating to the dissolution of civil unions. The dissolution of civil unions shall follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of marriage ---

5001 Vital Records; Forms of Certificates

Certificates of birth, marriage, civil union, divorce, death and fetal death shall be in the form prescribed by the commissioner of health and distributed by the health department.

In view of what we heard during our consultations, and the submissions made to the committee meetings when Bill 41 was being considered, I think it fair to say that any consideration of the Vermont Civil Union would be considered very avant garde in Manitoba and would be denounced by many who believe in the sanctity of a marriage between a man and a woman. Any encroachment on that institution by establishing a secular union, would be met with opposition.

A number of gays and lesbians would also oppose such a move in the belief that such an approach might distract the federal government from permitting their marriage. Some gays and lesbians, we were told, want nothing to do with marriage. I am uncertain whether that attitude would also result in opposition to a civil union.

Those opposed to special rights being accorded to same-sex couples would be upset with a civil union but it is my assessment that a less formal registration of an existing common-law partnership would not engender the same emotional response. I believe most members of the public would support a system that would offer greater protection to those living common-law and to any children being raised by them.

Quite apart from those issues, the major problem with the Vermont legislation is that it only applies to same-sex partners. Giving special rights to them would discriminate against heterosexual partnerships and would therefore be struck down as contrary to the Canadian Charter.

If Manitoba were to establish a regime that is similar to a marriage it might also be struck down if the government of Canada, or those opposed to the concept, chose to challenge it. Marriage comes within federal jurisdiction in Canada and Manitoba would be well advised to stay well away from that topic. I suggest the question of common-law marriage be left to the Government of Canada to consider or to the Supreme Court of Canada to rule upon if an appropriate case comes before it. On the other hand, although challenges have now been launched I see nothing to indicate that the Supreme Court is about to rule that any two couples may marry.

If Manitoba establishes a registration system it might include in its establishing legislation, some of the purposes of the registration in Vermont. In that way the public could be advised that the purpose of the legislation is to provide proof of the existence of a common-law partnership, to indicate its stability, and to indicate that it will strengthen the responsibility of common-law couples to care for and support one another and any children they are raising.

IV. Registration of Common-Law Partnerships

Vermont