Although there is not overwhelmingly strong or even unanimous support amongst Manitobans to the extension of property rights to same-sex and opposite-sex common-law partners, I recommend that Manitoba nevertheless proceed to amend its legislation to extend such rights. It is true that married persons have historically received benefits in our society which were not available to unmarried persons. However, it is difficult to reconcile this approach with the recent court cases holding that it is contrary to the Charter to discriminate against common-law partnerships, whether they be same or opposite-sex. Certainly if the government wished to have a clearer indication of whether our property legislation is likely to survive a Charter challenge, it can wait until the case of Walsh v. Bona is decided in the Supreme Court of Canada. It seems very likely, however, that such rights will eventually be extended to common-law partners and that Manitoba in taking legislative action now, will avoid contested litigation later.

Apart from legal considerations, there is also the very real social problem wherein many Manitobans already mistakenly believe that they have these rights and take no steps to protect themselves. Further, there is the potential drain on the public purse resulting from a person's lack of any entitlement to their partner's property upon their separation from or the death of their partner. Finally, there is the basic question of equity and fairness when two couples, alike in all respects except perhaps for the bond of marriage, can be treated so differently in law to the great economic disadvantage of one of the partners.

To ensure that persons who choose not to marry are not burdened with the same laws that would be imposed if they had married, the same "opting out" provisions that are available to spouses should be available to common-law partners. Specifically, common-law partners should have the right to contract out of any new legislative provisions through properly executed cohabitation agreements.

Once the decision has been made to extend these rights, the question becomes which legislative model is best used to accomplish such extension. There are two models in use in Canada: that employed by Nova Scotia where rights are acquired upon registration of the relationship, and that employed in Saskatchewan where rights are acquired once a certain status is achieved.

I conclude that a registration system is the less desirable choice for a variety of reasons. A registration system requires a proactive approach to acquire these rights which means that unless the step of registration is taken, the person remains unprotected. European countries that have registration have a very low "take up rate". That is, few people actually register. Certainly that seems to be the experience in Nova Scotia if the early results are any indication. This has been the experience in Manitoba for the sharing of pension benefits for common-law partners where the registration of the relationship is required before sharing can occur. All evidence seems to indicate that few Manitobans have taken advantage of this opportunity.

There are a number of reasons why couples might not proceed to register their relationship:

• they are unaware of the requirement to register;
• they decide to register, but procrastinate;
• they think that they will never need the protection of a property sharing scheme ["we will never separate", "he will take care of me in his will"], and therefore don't bother to register;

• one partner wishes to register but the other partner refuses to do it. This is especially difficult if the partner wishing to register is the one who is economically weaker and therefore most likely to benefit from registration; or

• one or both partners is married to someone else and terminating that relationship so as to permit registration of a new relationship would be difficult or impossible.

It can be argued that a registration system should be created, as well as a system whereby rights are conferred by status. This would be the worst of both worlds in my opinion and would confuse the public even further about what their legal rights and responsibilities are if they are living common-law.

It should be noted that the registration approach to property rights taken by Nova Scotia was in direct consequence of the Walsh v. Bona case where the provincial legislation omitting common-law partners from the property sharing regime was found to be unconstitutional. The Nova Scotia legislation represents their legislative response to cure this problem. It was not a part of the government's legislative agenda to create a scheme whereby common-law partners were given the protection of a property sharing regime. Certainly the legislation has not had this result since so very few common-law partners are affected.

In considering the registration approach taken by Quebec, it is important to remember that common-law partners presently have no rights to succession, spousal support, or property sharing in that province except to the extent that the couple has created these rights by contract. This is different from the other provinces in Canada where common-law partners have some rights equivalent to spouses, and these rights are gradually increasing. Further, in Quebec a great many more common-law partners enter into cohabitation contracts to govern their relations. Finally, it is important to remember that Quebec has a civil law tradition when comparing the legislative approach taken. The Quebec approach of only extending property rights to same-sex common-law partners through a system of registration of the relationship is not recommended.

I would therefore recommend the Saskatchewan approach where a couple acquires the rights and responsibilities of a common-law partnership through acquisition of that status pursuant to certain criteria. This will ensure that the greatest number of people who need the protection of such a legislative scheme will receive it. It will create a consistency of treatment between the issues of support rights and property rights since support rights in Manitoba are acquired upon the acquisition of a certain status.

If the Saskatchewan approach is used, then Manitoba needs to decide which couples will acquire the status of a common-law partnership. In determining this question, regard should be had to existing legislation. Certainly there should be a requirement that the relationship be a conjugal one. The question is, for how long ought it to have subsisted for the rights to be acquired?

The answer in existing legislation is different in Manitoba depending upon which legislation one falls under. For the purposes of acquiring pension rights the test is having cohabited for 3 years if either party is married to another party, and 1 year if not. For the purposes of acquiring support rights, the test is having cohabited for 3 years, or 1 year if there is a child of the relationship. For rights and responsibilities under federal law, the test is simply 1 year, without any reference to whether there are pre-existing marriages or after born children.

With just the issue of property in mind, I would have recommended a straight 24 months of cohabitation be the criteria. This length of time is more in step with most other provincial legislation where 3 years is unusually long. It would have the advantage of consistency, and be easily understood by the members of the public affected by it. It is short enough to capture the serious relationships, and long enough to avoid bringing the full weight of the law to bear upon relationships that are fleeting.

However, given the recent legislative amendments which went through in June, 2001, I am reluctant to recommend yet another type of definition for common-law partner, which can only confuse the public further and create an illogical inconsistency between property rights and support rights. It seems to me that gaining a status of common-law for support purposes ought to be the same as for property purposes.

Therefore, upon reflection I would recommend that the same criteria for the acquisition of property rights be used which is used for the acquisition of support rights, namely, 3 years of cohabitation, or 1 year if there is a child. I recommend that this apply to all property legislation including pension legislation. This has the potential to create another inconsistency in that a person might have acquired the status of a common-law partner for the purpose of pension division upon separation, but not for the purpose of pension rights upon the death of a partner, or vice versa, since the criteria would be different for each. I therefore recommend that the new criteria for common-law relationships apply in the pension legislation for all purposes even though it might result in some people "losing" rights that they had otherwise acquired. It is not an entirely satisfactory result, but I believe that it is more important to have consistency in the pension legislation and within Manitoba legislation generally as it impacts on persons living common-law.

The end result of these recommendations would be two different sets of criteria for achieving common-law status in Manitoba - that applied by the federal government for legislation within its jurisdiction, and that applied by the provincial government for legislation within its jurisdiction. This is the best that can be achieved.

Therefore, I recommend that the definition of common-law for all property legislation including pensions, be as follows:

A "common-law partner" means a person who, not being married to the other person, cohabited with him or her in a conjugal relationship

1. for a period of not less than 3 years, or
2. for a period of at least one year and they are together the parents of a child..

Once the decision has been made to extend property rights based upon the acquisition of the status of common-law partner, there are several special issues that arise in relation to specific legislation.

One challenge was the time-limit for applying for a property division. For spouses, a right to apply terminates 60 days after divorce which catches most people since divorce is a natural time to sort out legal rights and responsibilities. There is no such demarcation point for common-law partners. Clearly there must be some point in time when people can go on with their lives, free from any claims from former common-law partners. An arbitrary time period after the ceasing of cohabitation is the only solution. I have recommended that this time frame be 1 year, but it could be longer. In Saskatchewan it is 24 months.

Another problem that arises is the fact that it would be possible to have more than one person assert homestead rights in relation to a particular property. This is because a person can be married and have a common-law partner at the same time, both of whom may have resided in the same property. While this would not necessarily be a problem for the homestead rights which require a consent to the sale or mortgaging of the home, it might create a problem at death. Under a scheme extending homestead rights to common-law spouses, there could be 2 (or more) persons making a claim for a life estate in the property. I have recommended that the first person to acquire a life estate in the homestead have priority. While this might not work equity in every case, it would have the benefit of simplicity and might encourage spouses to "clean up" their affairs by terminating a marriage through divorce, or at least by securing a homesteads release before they more on to subsequent long term relationships.

Finally, consideration needed to be given to whether these changes should be given retroactive effect. It is recommended that they not apply to common-law partners who were already living separate and apart at the time that the changes are enacted, or whose spouse has already died at that time.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 Analysis
V d) Legislative Approaches in Other Jurisdictions	V f) Recommendations
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