Registered Domestic Partnerships (RDPs)

Manitoba

GOSSIP

(Group Organizing for Same-Sex Issues and Principles)

Karen Busby announced the formation of Winnipeg-based GOSSIP (Group Organizing for Same-Sex Issues and Principles), in the Spring of 2002, in preparation for legislation that the Manitoba government introduced in June 2002. The group met to discuss responses to the Review Panel which the government formed to consider the issues and to work on education and lobbying in our community.

GOSSIP's Comments on
The Charter Compliance Act (Bill 34)

August 2, 2002

The Common Law Partners’ Property and Related Amendments Act (Bill 53)

GOSSIP’s Position on Bill 53

GOSSIP (Group Organizing on Same Sex Issues and Principles) supports Bill 53 and, in particular, the extension of marital property laws to common law relationships on the breakdown of these relationships and the extension of the right to claim a common law partner’s estate if that partner dies intestate, that is, without a will.

GOSSIP supports the enactment of a Registered Domestic Partnership (RDP) regime which permits common law partners to register and thereby immediately claim the burdens, benefits, rights and protections of a wide range of laws. This support is conditional on the extension of marital property and intestacy laws to all common law relationships whether registered or not (with the right to agree to opt out) after the relationship has lasted for three years.

Who is GOSSIP?

The ad hoc group of writers, activists, and lawyers who eventually formed GOSSIP started meeting in June 2001 when the government introduced Bill 41. The name "GOSSIP" was adopted by this group in April 2002. GOSSIP and its predecessor group wanted to ensure that the Manitoba queer community was well-informed about deficiencies in Manitoba laws which affected our relationships; to consider what changes could be made to Manitoba laws; to determine if there was any consensus on what changes were most desirable; and to lobby for these changes.

Many GOSSIP members are affiliated with other organizations, like the Rainbow Resource Centre, EGALE, Canada's national lobby group for the queer community and their families, the Manitoba Bar Association (Gay and Lesbian Issues Sub-section), the Canadian Bar Association (Sexual Orientation and Gender Identity Sub-section), the Gay and Lesbian Lawyers Association (GALLA), Manitoba Association of Women and the Law (MAWL) and LEAF (Women's Education and Action Fund). GOSSIP and its members, together with some of these organizations, has held public forums, met with small groups and spoken to countless other members of the Manitoba queer community; published articles and letters in Swerve (the local queer monthly newspaper); encouraged community participation in committee hearings and before the Review Panel on Common Law Relationships; and circulated memos on the issues of whether the Manitoba queer community supported the extension of marital property and intestacy laws to our relationships. GOSSIP’s position that marital property and intestacy laws should apply to common law relationships is strongly supported in the Manitoba queer community.

Why does GOSSIP Support the Extension of Marital Property Laws to Common Law Relationships?

The current law provides that when married people separate, the value of any property that was acquired DURING the relationship and any change in value of pre-acquired property is equally divided on the breakdown of the relationship regardless of who paid for it or who holds formal title. This presumption of equal division applies to a range of property interests including houses and cottages, debts, vehicles, pension plans and RRSPs, and business interests.

If Bill 53 becomes law, the principle of equal division will also apply to common law relationships once the relationship has lasted for three years or if the parties have registered their relationship as a Registered Domestic Partnership. If parties do NOT want property to be divided equally, they can opt out of this regime. Opting out can be done by a simple written agreement between the parties which they both sign except that opting out of certain pension plans will require that the common law partners (like married partners) get independent legal advice and fill out a special form. Nova Scotia’s marital property laws, which failed to give rights to a common law (heterosexual) partner were held to be contrary to the equality guarantees in the Charter and were declared unconstitutional: Walsh v. Bona 2000 NSCA 53. This case is on appeal to the Supreme Court of Canada.

Marital property laws:

1) recognise that both partners make equal, although perhaps different, contributions to the financial well-being of a relationship and therefore a presumption of equal division is the fairest presumption to make if the relationship ends, unless the parties have specifically agreed otherwise;

2) ensure that the more financially vulnerable member of a partnership is protected if that partnership breaks down; and,

3) provide an expeditious method for resolving disputes.

Informal surveys of most people living in common law relationships show that they have given little thought to what should happen if their relationship breaks down or, in the case of most heterosexual people, that they mistakenly believe that marital property regimes do apply to their relationships. (Family law lawyers have confirmed before the Review Panel on Common Law Relationships that many heterosexual common law couples mistakenly hold these beliefs.) Some people object to the extension of marital property regimes on the ground that some common law couples have chosen this form of union in order to avoid marital property regimes. However, people who do not want their relationships governed by marital property regimes, that is, those few people who have actually come to agreements with their partners on how to deal with property, are not affected by this legislation as long as they have put their agreement in writing, or in the case of some pensions, filled out specific forms.

GOSSIP and its members have participated in discussions on whether to support extension of marital property regimes to GLBT relationships at public forums, at the committee hearings last summer, during the Common Law Review Panel submissions and consultations, through email reports and discussions, in the media, including Swerve (Manitoba's queer newspaper), and in endless private conversations. Almost no one invovled in these events has disagreed with the GOSSIP position. Given this high degree of consensus, GOSSIP supports the extension of marital property laws to common law relationships because each of the three rationales described above for these laws apply to common law relationships.

Why does GOSSIP Support the Extension of Intestacy Laws to Common Law Relationships?

Under current intestacy laws, a formally-married spouse has the first claim to an estate; children claim next; then parents, siblings, etc. Common law partners have NO RIGHT to anything from their partner’s estate if their partner dies without a will although dependants’ relief legislation provides that the distribution of an estate under intestacy rules or under a will can be displaced if the deceased person should be responsible for providing for someone, like a child.

Intestacy laws are designed to answer the question: "what would the deceased person have provided in a will had that person written a will?" GOSSIP asserts that common law partners should have the right to their partners’ estate because in the vast majority of common law relationships the deceased person would have wanted their surviving partner to receive the estate. Alberta’s intestacy laws, which failed to give intestacy rights to a common law same-sex partner were held to be contrary to the equality guarantees in the Charter and were declared unconstitutional: Johnson v. Sand 2001 ABQB 253. This case was not appealed and the Alberta government subsequently amended the law.

GLBT people are all too familiar with horror stories of families of origin insisting on asserting their right to a deceased person’s estate notwithstanding that that person lived with someone in a committed common law relationship for years. This committee heard some of these stories last year at the hearings on Bill 41 and, since that time, people in common law relationships have continued to be denied equality under the law by the current intestacy laws and have not been able to claim their partners' estates. Bill 53 will end this injustice. GOSSIP urges the government to proclaim in forceThe Intestacy Act amendments as soon as this law receives royal assent to ensure that this injustice ends as soon as possible.

Why does GOSSIP Support the Enactment of a Registered Domestic Partnership (RDP) Regime for Common Law Relationships?

Some governments have created regimes that permit common law couples to register their relationship as a RDP. GOSSIP has expressed its opposition to an RDP regime because we believe it will relegate our relationships to a second class status (if they are our only option) and because few people would actually register and therefore hardships would continue to be experienced by members of our community. As well, RDPs in other jurisdictions have only applied to private property rights and not to other laws affecting conjugal relationships, like the right to claim public benefits.

Bill 53 proposes a form of RDPs that overcomes some of these problems: common law couples can register their relationships and, upon registration, the common law relationship would be recognized immediately under all statutes touching on common law relationships rather than having to wait out the time period specified by statute. (The time period for eligibility or inclusion for public and private benefits and burdens varies from a requirement that the relationship be "of some permanence", one year, three years or variable periods if there are children.) In other words, early in a relationship, a couple can "opt in" if they wish by registering but if they don’t "opt in" the statutory time periods apply. In particular, after three years, they are automatically in the intestacy and marital property regimes unless they take steps to "opt out".

GOSSIP supports the form of RDPs created by Bill 54 as some common law couples may want to have their relationships recognized in this way and to speed up the time period for acquiring various rights and obligations.

In closing, GOSSIP applauds the Manitoba government for introducing Bill 53 because it, together with the amendments made last year through Bill 41 and last week through Bill 34, ensures that common law same-sex relationships are fully recognized on a equal basis in Manitoba law. We embrace the notion that extending laws to protect members of our community also means that these laws will require that we fulfill certain obligations. Bill 53 is a positive step forward in granting full legal equality to queer folk.

On behalf of GOSSIP,

Debra Parkes, Elliot Leven, Gilles Marchildon, Kristine Barr, Mike Law, Karen Busby, Sarah Inness, Tim Preston, Donna Huen.

The Manitoba government has introduced legislation that amends 56 acts to ensure that common law relationships (including both same and opposite sex relationships) are treated in law with equality, dignity and respect. The bill amends various acts to permit, among other things:

• all common law partners to adopt children together;
• to clarify when members of a common law partnership are obliged to take action to avoid conflicts of interests, like reporting their partner's financial interests;
• to ensure that Manitoba's laws are consistent with federal laws, especially income tax laws, to ensure that we can be eligible for certain tax benefits;
• to give common law partners the right to make health care decisions for an incapacitated partner and to deal with end of life issues; *to permit common law partners to change their name to their partner's name; and
• to update the anti-discrimination provisions in a number of statutes to ensure that they are consistent with The Manitoba Human Rights Code. Many of these statutes had never been updated and therefore did not include prohibited grounds of discrimination like sexual orientation or disability.

The government has committed to introducing another bill in this session to deal with 20 statutes concerning property laws on the breakdown of relationships or on the death of one partner. Once both of these bills are passed, Manitoba will have made the comprehensive amendments that are required to ensure that queer folk, as individuals and in our partnerships and families are as recognized and protected by laws as straight folks.

Some highlights of the bill are as follows:

The Adoption Act. The government has recognized that the law must reflect the reality that we parent children and that many more are willing to welcome children into their homes. This bill will allow people in common law relationships to apply to adopt children jointly or to adopt each others' children. Therefore, the law will ensure that these children enjoy all the legal protections enjoyed by children born to, or adopted by, married couples. Numerous other statutes which contain parental rights and obligations (like The Public Schools Act) are also being amended. GOSSIP supports these amendments.

The Vital Statistics Act. The government has already amended the VSA to provide parents with a greater range of options in determining what name to give a child on a birth certificate, including the name of a non-biological parent, and these amendments are expected to be proclaimed in force soon. Under the current VSA, a married women who conceives a child through artificial insemination can name her husband as the father of the child on the birth registration. If this bill becomes law, a woman can name a common law partner as a parent on the birth registration. While it is still advisable that any non-biological parent complete a formal adoption in order to ensure that the parent-child relationship is uncontestable, the birth registration is an important indicator of the status of the non-biological parent until the adoption proceedings are complete. While GOSSIP supports these amendments to the VSA, it reiterates its position that the VSA could also be amended to provide that chidlren registered in this way "shall be considered for all purposes as the child of the husband or common law partner without having to be formally adopted by the husband or common law partner."

Statutes Affecting Health Care & End of Life Issues. Statutes like The Anatomy Act and The Health Care Directives Act are being amended to ensure that common law partners will have the responsibility for making health care decisions in the event of their partner's incapacity and various other decisions on their partner's death. GOSSIP supports these amendments.

Property Laws. The Manitoba government accepts as good public policy the presumption that property acquired during a common law relationship should be equally divided if the relationship breaks down and that the common law partner should have the right to inherit his or her partner's estate if the partner dies without a will. The government has indicated that it will introduce comprehensive legislation concerning family property in this session but that, due to the myriad of technical details that require attention, this legislation is not yet ready to be introduced. GOSSIP supports the government's position because 1) many people in common law relationships (mistakenly) believe that this is the law and the law should reflect what people believe it to be when that belief is based on sound policy; 2) in principle, laws should protect the more financially vulnerable member of a partnership; and, 3) parties can contract out of the presumption of property division or prepare wills if they do not want these laws to apply to their relationships. GOSSIP is pleased that the government has committed to making these amendments regarding property law.