An Opinion Respecting Persons in Common-Law Relationships

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 dispatch 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 31st 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 statues 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.

Gord Mackintosh
Minister of Justice
Attorney General
June 19, 2001

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 Terms of Reference
VI) Conclusion	Notice Inviting Submissions
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