This paper was prepared for the Law Commission of Canada under the title "The Legal Regulation of Adult Personal Relationships: Evaluating Policy Objectives and Legal Options in Federal Legislation". The views expressed are those of the authors and do not necessarily reflect the views of the Commission. The accuracy of the information contained in the paper is the sole responsibility of the authors.

Ce document est également disponible en français sous le titre « L' assujettissement juridique des rapports personnels entre adultes : Évaluation des objectifs des politiques et des alternatives juridiques dans le cadre de la législation fédérale ».

        Few would dispute that adult personal relationships characterized by caring and commitment ought to be recognized and supported by the state because of their fundamental importance to the well-being of individuals and communities. The law has long sought to identify these relationships by reference to ties of blood, marriage or adoption. Contemporary norms, however, value adult personal relationships by reference to their qualitative attributes rather than their formal legal status. This shift in normative assumptions has accompanied profound shifts in Canadians' living arrangements over the course of the last thirty years. We have witnessed a decline in the marriage rate, and sharp increases in the rate of non-marital cohabitation, divorce, non-marital and single-parent child rearing.

        In seeking to recognize and support adult relationships of caring and commitment, the state should be guided by the fundamental values of autonomy, privacy, equality and security that are central to our constitutional and political traditions. Individuals should be free to choose whether (and with whom) to form personal relationships. The state should promote relational autonomy by avoiding policies that create pressure to abandon relationships of caring and commitment, or that accord preferential status to certain categories of relationships defined without reference to their qualitative attributes. The state ought to promote privacy by avoiding intrusion into peoples' homes and by avoiding legal rules that cannot be administered effectively without intrusive examinations into peoples' intimate lives. The state should promote equality by regulating adult personal relationships by reference to qualities that are relevant to legitimate state objectives. The values of equality and security require the state to seek to prevent exploitation and violence in personal relationships. Finally, the value of security requires that the state put in place an identifiable and accessible set of legal mechanisms to protect persons' reasonable expectations formed in adult personal relationships.

        Existing federal legislation seeks to recognize and support adult personal relationships of caring and commitment through the pursuit of two legislative objectives. The first is the establishment of legal mechanisms for the formation and dissolution of relationships. Currently this is accomplished primarily through the law of marriage and divorce. The second objective is to respond to the consequences of relationships characterized by emotional and economic interdependence. This objective manifests itself at every stage of the evolution of adult personal relationships. The state has an interest in supporting the integrity and security of ongoing relationships of caring and commitment, and recognizing the value of caregiving provided in those relationships. The state has an interest in protecting people from violence and exploitation to which they may be particularly vulnerable in personal relationships. The possible existence of shared economic interests arising in relationships of caring and commitment is relevant to many state objectives in the context of the regulation of economic transactions. The economic and emotional interdependence that characterizes adult personal relationships can be disrupted by a number of events such as injury, illness, retirement, death or relationship break down. The state has an interest in cushioning the impact that the sudden loss of emotional and economic support can have on persons in relationships of caring and commitment, and in ensuring an equitable distribution of economic entitlements on the break down of a relationship.

        After summarizing existing federal statutes that employ relational terms, and categorizing them according to the relational objectives they pursue, this report pursues the question of how to reform these statutes to better support relationships of caring and commitment in a manner that promotes the values of autonomy, privacy, equality and security. The report pursues this inquiry in two stages. The first is to ask whether the relational objectives underlying particular statutory schemes are still compelling. If not, the statutes should be repealed or the relational terms removed. Second, if a statute is pursuing a legitimate relational objective, the question is how to go about defining the relationships to which it ought to apply.

        The report identifies a number of laws that do not effectively pursue legitimate relational objectives. These include the rules on spousal testimonial competence and compellability in the Canada Evidence Act, the monthly allowance provisions of the Old Age Security Act, the anal intercourse provision of the Criminal Code, and the insurable employment provisions of the Employment Insurance Act. In each of these contexts, the current legislative provisions employing relational terms do not pursue legitimate relational objectives in a coherent and compelling manner. Other statutes employing relational terms require considerable revision to eliminate the dated or questionable assumptions on which they rely. The guaranteed income supplement provisions of the Old Age Security Act, the duty to provide necessaries of life provision of the Criminal Code, and the wrongful death provisions of the Canada Shipping Act are examples of statutes in need of revision to bring them into line with contemporary relational norms and expectations.

        Federal statutes have employed a remarkable diversity of relational terms to accomplish their objectives. These relational terms have been restricted, for the most part, to capturing relationships flowing from ties of blood, marriage or adoption. Until recently, with the exception of pension and tax statutes, federal statutes did not recognize persons cohabiting outside marriage. The Modernization of Benefits and Obligations Act, passed shortly after the completion of this report, will add a new definition - "common law partner" - to the vast majority of federal statutes. Cohabiting couples, whether of the same or opposite-sex, will qualify as common law partners if they have lived together for at least one year in a conjugal relationship. Conjugality is now the marker that determines which unmarried, cohabiting adult couples will be included within federal legislation.

        The report suggests that using conjugality as a central feature of the new relational definition has a number of disadvantages. The distinction between conjugal and non-conjugal relationships is an elusive one. The conjugality requirement may result in inquiries into matters, such as the partners' sexual lives, that bear no relationship to legitimate state objectives. It may be possible to draft a legislative definition that focuses solely and more effectively on the existence of the three qualitative attributes that are normally relevant to legitimate state relational objectives, namely, shared residence, emotional intimacy and economic interdependence.

        The Modernization of Benefits and Obligations Act takes important steps forward in implementing the principle of relational equality in federal statutes. It does so, however, by relying on the ascribed or imposed status of "common law partner". The values of equality, autonomy, privacy and security could be significantly advanced if the state would broaden opportunities for persons living together to choose to formalize their relationships. This could be accomplished in two ways: by removing the legal bar to same-sex marriage, and by implementing a domestic partnership regime.

        A careful analysis of the most recent judicial rulings on the equality rights in the Charter of Rights and Freedoms reveals that the opposite-sex definition of marriage is vulnerable to constitutional challenge. A government committed to meeting its constitutional obligations, and to supporting relationships of caring and commitment, ought to remove the opposite-sex component from the legal definition of marriage.

        Whether or not the definition of marriage is amended in the future, the federal government ought to enact a domestic partnership law that would enable any two adults to register as partners for the purposes of federal laws and policies. Federal statutes should then be amended to accord registered domestic partners the same package of rights and obligations as spouses. A domestic partnership law would promote the equality and autonomy of non-conjugal cohabitants by permitting them to subscribe to the full package of spousal/ partnership benefits and obligations from which they are currently excluded. Even for unmarried couples living together in conjugal relationships, a registered domestic partnership option would present a number of advantages over the current legislative scheme: it would enable them to avoid the delays, uncertainties and potentially invasive inquiries generated by the administration of the definition of common law partner.

        A domestic partnership regime is the best way to address the needs of non-conjugal cohabiting couples who are currently excluded from relational definitions in many federal statutes. Whether non-conjugal cohabitants who choose not to register as partners ought to be included in federal laws can only be answered on a statute-by-statute basis. The report argues that there is a compelling basis for subjecting non-conjugal cohabitants to the Criminal Code duty to provide each other with the necessaries of life. Similarly, non-conjugal cohabitants should be included in the Immigration Act's sponsorship provisions. They should be able to invoke the testimonial privilege that is attached to private communications by the Canada Evidence Act. On the other hand, to accord to non-conjugal unregistered cohabitants a right to a division of pension entitlements, or a right to claim pension survivor's benefits, runs the risk of undermining their autonomy and reasonable expectations.

Bruce Ryder is an Associate Professor at Osgoode Hall Law School where he has taught since 1987 after clerking for Justice Gerald Le Dain of the Supreme Court of Canada (1984-85), and after receiving an LL.M. from Columbia University (1987) and an LL.B. from the University of Toronto (1984). He served as Editor-in-Chief of the Osgoode Hall Law Journal from 1997-2000, and teaches courses in Constitutional Law, Canadian Federalism, Torts, and Sexuality and the Law. He is a constitutional expert whose published articles focus on equality rights, freedom of expression, Aboriginal rights, and federalism. He has published a number of articles on the legal status of same-sex couples, including "M v. H: Time to Clean Up Your Acts", with B. Cossman, (1999) 10(3) Constitutional Forum 59; "Egan v. Canada: Equality Deferred, Again", (1996) 4(1) Canadian Labour & Employment Law Journal 101; "Becoming Spouses: The Rights of Lesbian and Gay Couples", in Law Society of Upper Canada Special Lectures 1993: Family Law (1994); "Family Status, Sexuality and the Province of the Judiciary: The Implications of Mossop v. A.-G. Canada", (1993) 13 Windsor Yearbook of Access to Justice 3-38; "Equality Rights and Sexual Orientation: Confronting Heterosexual Family Privilege", (1990) 9 Canadian Journal of Family Law 39-97. In addition, he and co-author Professor Brenda Cossman prepared a research report for the Ontario Law Reform Commission in 1993 entitled Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law Act: Accommodating a Diversity of Family Forms (Toronto: OLRC, 1993). He is currently researching a book on the history of the censorship of publications in post-war Canada. Part of this research is reported in his article "Undercover Censorship: Exploring the History of the Regulation of Publications in Canada", in K. Petersen and A.C. Hutchinson eds., Interpreting Censorship in Canada (Toronto: University of Toronto Press, 1999).

Brenda Cossman is Associate Professor, at the Faculty of Law, University of Toronto. She received her LL.B. from the University of Toronto (1985), served as a law clerk to the Ontario Court of Appeal (1985-86) and received her LL.M. from Harvard University (1988). She was a member of the faculty of Osgoode Hall Law School, York University from 1988-98. She teaches and researches in the area of family law, feminist theory, and human rights. Her publications include the co-authored books, Bad Attitude/s on Trial: Pornography, Feminism and the Butler Decision, (University of Toronto Press, Toronto, 1997), Secularism's Last Sigh: The Hindu Right and the (Mis)rule of Law, (New Delhi/London/ Oxford University Press, 1999) and Subversive Sites: Feminist Engagement with Law in India (Sage, New Delhi/ Thousand Oaks/London, 1996). She is the co-author of a number of research reports, including Gay, Lesbian and Unmarried Heterosexual Couples and the Family Law Act: Accommodating a Diversity of Family Forms (1993), prepared for the Ontario Law Reform Commission with Bruce Ryder, and Case Study in the Provision of Legal Aid: Family Law, a paper prepared for the Ontario Legal Aid Review, 1997, with Carol Rogerson, published in the Report of the Ontario Legal Aid Review, A Blueprint for Publicly Funded Legal Services 1997.

    We would like to acknowledge the excellent research assistance provided by Amanda Kushnir (Osgoode Hall Law School, Class of 2001), Tiffany Turnbull (Osgoode Hall Law School, Class of 2002), Jessica Smith (University of Toronto, Class of 2001) and Jennifer Guy (University of Toronto, Class of 2000). Many thanks also to Lisa Hitch of the federal Department of Justice in helping us come to a better understanding of federal pension statutes and the amendments proposed by Bill C-23. We are especially grateful to Tom Anderson of the British Columbia Law Institute for making available to us the impressive database he is compiling for the Law Commission. We cannot imagine how we could have completed this report without access to the comprehensive compilation of federal statutory provisions that employ relational terms assembled in Tom Anderson's database. Any errors that remain are our responsibility.

        A note on the scope of our project: we have endeavoured to provide an overview of existing federal legislation regulating adult personal relationships, and we have attempted to address the most significant law reform issues through a general normative analysis and a close examination of selected statutes. The regulation of relationships between children and parents or other adults is beyond the scope of this study. Nor does this report present a comprehensive examination of every federal statutory provision that employs adult relational terms. We have tried to convey an accurate general picture through a reasonably comprehensive survey. We have left tax laws aside, in deference to Aboriginal peoples rights to articulate and implement distinct normative frameworks for the governance of their communities, we have chosen not to discuss federal laws, like the Indian Act, that apply specifically to Aboriginal peoples.