When the Review Panel on Common-law Relationships was established on June 21, 2001 by the Honourable Gord Mackintosh, the Minister of Justice and Attorney General of the Province of Manitoba, he sought the advice of Jennifer A. Cooper Q.C. and myself on several issues.

As we began to write our report on the various topics, we found that, although we agreed on many matters, we disagreed on others. We had difficulty trying to reflect our differing positions in one report and finally concluded that we could more clearly express our opinions and recommendations if we submitted separate reports.

That possibility was discussed with the Deputy Minister and he suggested two interpretations of the issues, and separate opinions, might be even more beneficial to government than one. We are therefore submitting separate reports.

The Minister initially asked us to report to him by the 31^st of December, 2001, but subsequently asked us to expedite our report on Adoption and submit an Interim Report on that topic. My interim report was submitted on October 29, 2001. The following is my final opinion and report. It alters my interim report by inserting some initial comments in this document and by eliminating others that are no longer necessary. The substance of my comments on adoption remains unchanged.

The terms of reference we received from the Minister indicate the issues we were to examine, what we were to report on, and to some extent, how we were to proceed. They stated:

Government seeks your advice on a series of issues respecting persons in common-law relationships. The Province of Manitoba maintains a policy of non-discrimination in the application of provincial statutes. Concerns recently have been raised that a number of statutes may need to be addressed in terms of their fairness to and potentially discriminatory effect against members of the gay and lesbian community in Manitoba.

In the development of your advice, you have full access to all relevant employees within the Department of Justice (Manitoba), should you find that such access may be helpful to you in providing advice to government. You may also consult with experts in relevant areas of the law. Any legislation resulting from your advice will result in full public hearings which will permit any member of the public to address the issues under consideration by the legislature. For that reason, public hearings are unnecessary at this stage, and are not contemplated under these terms of reference. However, you may consult with interested individuals or groups, if you feel it would be helpful to do so. It is important to emphasize that proceeding with despatch and in a focused way is a critical element of these terms of reference.

Your advice should be provided to me by or before the 31^st of December, 2001. To ensure a transparent process, and public accountability, these terms of reference and any subsequent amendments that may be requested by you are, and will continue to be, publicly available. Your advice will be made public as well.

The issues for which government seeks your advice are as follows:

Adoption

1. As they apply to adoption applications by same sex common-law couples, are the provisions in Manitoba's Adoption Act likely to survive a Charter challenge?
2. The best interests of the child is the paramount consideration in any adoption proceeding. If Manitoba's Adoption Act is not likely to survive a Charter challenge, review legislative approaches in other Canadian jurisdictions, identify models (legislative approaches) which would comply with the Charter and recommend a preferred approach.

Conflicts of Interest and Protection of the Public Interest

3. A number of Manitoba statutes contain conflict of interest provisions, including those affecting public officials. Are amendments recommended to these conflict of interest provisions and other provisions to protect the public interest to include persons in common-law relationships, where those persons are currently excluded? If so, what approach is recommended?
4. One or both persons in a same sex common-law relationship may not be open with family, friends, co-workers and others about their sexual orientation. Some persons in opposite sex common-law relationships may also have concerns about open disclosure. If amendments to conflict of interest provisions are recommended, then how should these changes be reconciled with the privacy rights/interests of both persons in a common-law relationship?

Legislation dealing with Property Interests

5. Taking into account legislative developments across Canada, particularly in Saskatchewan and Nova Scotia, recommend an approach to addressing rights and duties of common-law partners in legislation that gives married spouses an interest in and right to inherit/share their spouse's property.

The first thing we did as we entered upon our responsibilities was to invite people to send us their comments and suggestions on the various issues. We published a notice and request for comments (in urban and rural newspapers throughout the province) and received a number of replies.They served two purposes. They provided us with a cross-section of opinion and enabled us to identify those with whom we would like to meet.

Our second step was to arrange a number of private meetings and to invite a representative number of individuals and organizations to discuss their thoughts and recommendations with us. We invited those we believed had a similar point of view to the same meeting so we could discuss their perspectives free from any or argument from those who might disagree with them. We were anxious to avoid confrontations and bitterness displayed during the committee hearings on Bill 41.

We also invited some we thought would have first-hand knowledge of how the adoption system operates. We developed a number of questions and tentative concerns and wanted the opportunity to explore them with people who are actively involved in administering the Act. We wanted to learn of their concerns, if they were prepared to share them with us. Everyone we invited, who was available, came to a meeting and graciously discussed the issues with us. After the in-person consultations were completed we made a number of long distance conference calls to discuss our terms of reference with national organizations that have staff studying the issues and intervening in Supreme Court of Canada and other cases.

While the plans for meetings were being put in place, we considered the state of the existing law and read the transcripts of the oral presentations that were made to the Standing Committee on Law Amendments on June 18^th and 21^st, 2001 and the written submissions that had been filed with it.

The consultations we held and the submissions we received were of value as they provided a considerable amount of information we would not otherwise have had and provided us with a wide variety of strongly held opinions. As will be seen, they played an important role in the formulation of my own opinions and recommendations.

We received eleven written submissions from representatives of national and provincial organizations as well as 25 written submissions from individuals throughout the province. We met with 26 people, 18 of whom represented an organization. Telephone conference calls were held with three national organizations.

I have amended my interim report on Adoption by extracting some opening comments to adapt them to this document. My final report is divided into four parts. Part I contains my analysis of the Supreme Court of Canada case of M. v. H. and other cases dealing with adoption. Part II deals with Conflict and the Public Interest and the applicability of the legislative requirements to common-law couples.

Part III deals with property legislation, contains a lengthy review of a another line of Supreme Court and other cases and it deals at length with the effect of stereotyping and the need to avoid legislative discrimination. It suggests changes to many statutes, including some amendments to those changed pursuant to Bill 41. It deals primarily with the reasons changes are necessary, but gives examples of the most serious Charter problems that remain.

Part IV reviews systems that record common-law systems in other jurisdictions and discusses their suitability in Manitoba. It spends some time discussing the possibility of establishing a Partnership Registry in Manitoba.

Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Introduction
Executive Summary	Part I) Introduction
Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report