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Home  About Us Reports Final Report 2002 - Beyond Conjugality
Final Report
Beyond Conjugality
Ce document est également disponible en français:
Au-delà de la conjugalité:La reconnaissance et le soutien des rapports de nature personnelle entre adultes
(ISBN:0-662-86437-9 et catalogue: JL2-18/2001F) The Report is also available on the web site at www.lcc.gc.ca 
©Her Majesty the Queen in Right of Canada, represented by the Minister of Public Works and Government Services, 2001. Catalogue: JL2-18/2001E
ISBN: 0-662-31272-4 December 21, 2001 The Honourable A. Anne McLellan
Minister of Justice
Justice Building
4th Floor, East Memorial Building
Wellington Street
OTTAWA ON K1A 0A6 Dear Minister: In accordance with section 5(1)(c) of the Law Commission of Canada Act, we are pleased to submit this Report of the Law Commission of Canada on Close Personal Adult Relationships. Yours sincerely,  |  | Nathalie Des Rosiers
President | Gwen Boniface
Commissioner |
 |  |  | Alan Buchanan
Commissioner | Roderick Wood
Commissioner | Bernard Colas
Commissioner |
Table of Contents Letter of Transmittal Executive Summary Acknowledgements Introduction Chapter One: The Diversity of Personal Adult Relationships Conjugal Relationships Non-Conjugal Households and Non-Conjugal Relationships
Non-Conjugal Relationships Between Relatives
Non-Conjugal Relationships Between Non-Relatives Caregiving Relationships Conclusion Chapter Two: Fundamental Values and Principles Fundamental Values
Equality
Relational Equality
Equality Within Relationships
Autonomy Other Principles and Values
Personal Security
Privacy
Freedom of Conscience and Religion
Coherence
Efficiency Conclusion Chapter Three: Reconsidering the Relevance of Relationships Part 1: Methodology A New Methodology: Four Questions
1. Are the Objectives Legitimate?
Recommendation 1 – Review Objectives
2. Do Relationships Matter?
Recommendation 2 – Relevancy of Relationships
3. Is Self-Designation Possible?
Recommendation 3 – Self-Designation
4. Is There a Better Way to Include Relationships?
(a) Uniform Definition
(b) Tailoring Definitions
Recommendation 4 – Targeting Relationships
Recommendation 5 – Four-step Methodology Part 2: Application I. The Marine Liability Act: Compensating for Negligently Caused Harm to Relationships
Recommendation 6 – Relational Loss II. The Canada Labour Code: Relationships and Leave from Employment
Bereavement Leave
Recommendation 7 – Self-Designation
Caregiver Leave
Recommendation 8 – Self-Designation III. The Immigration Act: Family Sponsorship
Recommendation 9–Sponsorship Provisions IV. The Canada Evidence Act: Limits on Spousal Testimony in Criminal Trials
The Need for Reform
Common Law Background
Statutory Alteration of the Common Law
Reconsidering the Rules
Spousal Incompetence
Recommendation 10 – Repeal Common Law Rule
Spousal Non-Compellability
Marital Communications Privilege
The Australian Balancing Approach
Recommendation 11 – Spousal Non-Compellability
Recommendation 12 – Marital Communications Privilege V. The Employment Insurance Act: Preventing Fraud
Recommendation 13 – Irrebuttable Presumptions
Recommendation 14 – Rebuttable Presumptions
Defining Insurable Employment
Recommendation 15 – Presumption of Uninsurability VI. The Bankruptcy and Insolvency Act: Protecting Creditors' Interests
Reviewable Transactions
Recommendation 16 – All Transactions
Fraudulent Preferences
Recommendation 17 – Knowledge of Insolvency VII. The Bank Act: Avoiding Conflicts of Interest
Recommendation 18 – Regulation of Transactions VIII. The Income Tax Act
A. Purposes of the Laws of Income Tax
Technical Tax Provisions
Tax Expenditures
B. The Basic Taxpaying Unit
General
Background
Empirical Case for Individual Taxation
Normative Case for Individual Taxation
Effect of Family-Unit Taxation on the Role of Individuals in Personal Relationships
Administrative Considerations
Recommendation 19 – Individual as the Basis
C. Specific Tax Provisions That Rely Upon Relational Status
Dependent Relative Tax Credits
Recommendation 20 – Extend Tax Credits
Recommendation 21 – Support to Persons with Disabilities
Spouse and Common-Law Partner Tax Credit
Technical Tax Policy Justification
Tax Expenditure Justification
Recommendation 22 – Direct Income Support
Goods and Services Tax Credit
General
Taking Account of Economies in Household Production and Consumption
Recommendation 23 – Assumption of Economies
Phasing Out the GST Credit Based on Family Income
Recommendation 24 – Individual Income as the Basis
Transfers of Property Between Individuals in a Close Personal Relationship
Technical Tax Justifications
Tax Expenditure Justifications
Extending the Rollover to Non-Conjugal Cohabitants
Recommendation 25 – Extend Tax-Free Transfers IX. The Old Age Security Act: Relationships and Old Age Pensions
Recommendation 26 – Assumption of Economies
Recommendation 27 – Reference to Individual Income
Monthly Allowance
Recommendation 28 – Clarify Objectives
Recommendation 29 – Target Caregivers X. The Canada Pension Plan: Survivor's Benefits
Recommendation 30 – Self-Designation
Conclusion Chapter Four: The Legal Organization of Personal Relationships The Role of the State Legal Frameworks for Personal Relationships
Private Law
Ascription
Registration Designing a Registration Scheme
Formal Attributes
Legal Implications of Registrations
Intergovernmental and International Implications Recommendation 31 – Registration Scheme Recommendation 32 – International Arrangements Marriage
Registration Instead of Marriage
Adequacy of Current Marriage Laws
A Brief History of Marriage Laws
The Case for Civil Marriage
The Case for Same-Sex Marriage
Recommendation 33 – Same-Sex Marriage Conclusion Conclusion Summary of Recommendations Appendix A: Bibliography Executive Summary IntroductionCanadians enjoy a wide variety of close personal relationships – many marry or live with conjugal partners while others may share a home with parents, grandparents or a caregiver. The diversity of these relationships is a significant feature of our society, to be valued and respected. For many Canadians, the close personal relationships that they hold dear constitute an important source of comfort and help them to be productive members of society.
The law has not always respected these choices, however, or accorded them full legal recognition. While the law has recently been expanding its recognition beyond marriage to include other marriage-like relationships, it continues to focus its attention on conjugality. The Law Commission believes that governments need to pursue a more comprehensive and principled approach to the legal recognition and support of the full range of close personal relationships among adults. This requires a fundamental rethinking of the way in which governments regulate relationships. The Diversity of Personal Adult RelationshipsThe diversity of personal relationships formed by Canadian adults is not a new phenomenon. Alongside the nuclear family centred on the conjugal couple, there have always been a variety of other living arrangements, including adult siblings sharing a home, widows and widowers forming blended families and multi-generational households. While domestic relationships appear to have become more diverse over the past thirty years, it may simply be that public awareness has increased as a result of the increased availability of statistical data. For example, the 2001 census was the first time that Statistics Canada collected data on same-sex unions. Many non-conjugal relationships are still largely invisible in mainstream social science research. As well, we have only limited information about relationships where adults are economically, emotionally and even physically interdependent, but do not share a residence. Conjugal RelationshipsA majority of Canadians form a conjugal union at some point in their lives. While the marriage rate has declined steadily since 1971, marriages still constitute a predominant choice for opposite-sex conjugal unions. Nevertheless, opposite-sex cohabitation – whether as an alternative to marriage, as a prelude to marriage or as a sequel to marriage – is a growing phenomenon that now has widespread social acceptance.
There is as yet no census data or reliable studies on the number of lesbian and gay couples living together in Canada. The available data from small-scale studies suggests that gays and lesbians form enduring conjugal relationships in numbers comparable to the population as a whole. It appears that a significant minority of Canadian households consists of same-sex couples. Non-Conjugal Households and Non-Conjugal RelationshipsA substantial minority of Canadian households involves adults living alone, lone-parent families or adults living together in non-conjugal relationships. Households centred around a conjugal relationship may also include other adults with no conjugal ties to the couple, such as relatives or close friends. In addition, adult children are often returning home to live with their parents, principally for financial reasons caused by unemployment or the need to complete their education.
The concept of the economic family encompasses all relatives living in the same household, regardless of how they are related. Adult siblings living together form the largest component of this group.
We know little about non-conjugal relationships between non-relatives, since the 1996 census did not differentiate between same-sex conjugal relationships and non-conjugal relationships between non-relatives. We do know that "families of friends" can be of great importance, particularly within the gay and lesbian communities and among older adults, especially older women. Persons with Disabilities and Their CaregiversPeople with disabilities have the same range of close personal relationships as other Canadians. They are spouses, friends, lovers, parents, aunts, uncles and so on. Unlike most other Canadians, many people with disabilities are also in close personal relationships that are characterized at least in part by personal care or support that is related to their disabilities. Over 90 percent of persons with disabilities live in their own homes. The vast majority must develop relationships of support with paid and non-paid caregivers for their basic survival and well-being.
The available data shows that women continue to provide the bulk of caregiving on an unpaid basis. Numerous studies have shown that supports to individuals with disabilities and their families are often insufficient. This situation puts stress on family members who are expected to compensate for gaps in formal care in their unpaid role as caregivers. The extent of their caregiving responsibilities can take a major toll on caregivers' economic security and physical, emotional and psychological health. Inadequate social support of caregiving has an impact not only on caregivers but also on the well-being of the person receiving care and, just as importantly, on the quality of the relationships between caregivers and those receiving care.
Canadians have always formed a diverse array of personal adult relationships. Recognizing and supporting personal adult relationships that involve caring and interdependence is an important state objective. In the past, many policies were framed to apply only to married persons. Governments have taken important steps forward in recent years by extending rights and obligations to persons who are living in non-marital relationships, whether same-sex or opposite-sex. But this extension of rights and obligations has maintained the legal focus on conjugal relationships. A more principled and comprehensive approach is needed to encompass the full range of Canadians' close personal adult relationships. Fundamental Values and PrinciplesEquality and autonomy are the two most important values that governments need to consider in framing policies that recognize and support personal adult relationships. State regulation of personal relationships should also seek to enhance other values: personal security, privacy and religious freedom, while pursuing legitimate government objectives in a coherent and efficient manner.
Governments must respect and promote two kinds of equality. Relational equality seeks to equalize the legal status among different types of relationships. Legislation like the federal government's Modernization of Benefits and Obligations Act largely eliminated distinctions between these two groups. However, by focusing only on conjugal couples, it entrenches unequal legal treatment of conjugal and non-conjugal relationships which may share the functional characteristics of emotional and financial interdependence. The principle of relational equality requires more than equal treatment of conjugal couples.
The concept of equality within relationships seeks to overcome unequal distributions of income, wealth and power, much of it based on historic inequality between men and women, or the lack of state support for persons with disabilities.
The value of autonomy requires that governments put in place the conditions in which people can freely choose their personal relationships. While governments should discourage the formation of abusive relationships, they should not create financial or other kinds of pressure to discourage relationships without reference to their qualitative attributes. The state should therefore remain neutral with regard to the form or status of relationships and not accord one form of relationship more benefits or legal support than others.
Personal security – whether physical, psychological or economic – enhances the ability of individuals to make healthy choices about entering or remaining in relationships. The state has a role to play in ensuring physical security within a relationship as well as economic security outside the relationship.
Healthy personal relationships are founded on candour and trust; they can flourish only if we are confident that our intimate thoughts and acts will not be discovered by or revealed to others. To promote the privacy that is necessary to such relationships, the state should avoid establishing legal rules that require intrusive examinations into, or forced disclosure of, the intimate details of personal adult relationships, unless the relationship involves violence or exploitation. Privacy rights must be balanced, however, and in some circumstances must give way to compelling objectives such as the state interest in prosecuting and preventing crime, including the commission of crimes involving domestic violence and abuse.
Contemporary Canadian understandings of religious freedom and equality require that the state not take sides in religious matters. The history of marriage regulation in Canada has thus been characterized by a progressive uncoupling of religious and legal requirements, reflecting a growing emphasis on the separation of church and state in a secular and pluralistic political community. Our current understanding of religious freedom requires that laws and policies, including those that regulate personal adult relationships, pursue objectives that can be defended in secular rather than religious terms. Coherence requires that laws have clear objectives, and that their legislative design corresponds with the achievement of those objectives. This would avoid reliance on marital status in a law whose objectives do not necessarily relate to marriage.
The efficiency of a law, policy or program may be measured by how effective it is, for example, in reaching its intended beneficiaries and whether it can be administered without undue costs or delays. Perfect coherence may not be achievable if the costs of administering a specifically targeted law are prohibitive.
A comprehensive approach to the recognition and support of personal adult relationships should be guided, first and foremost, by the values of equality and autonomy. In addition, state policies should protect and advance personal security, privacy and religious freedom, and they should seek to accomplish legitimate state objectives in a coherent and efficient manner. Proposed laws and the operation of existing laws should be carefully scrutinized to eliminate any detrimental effects on these values and principles. Reconsidering the Relevance of RelationshipsIt is time to try to imagine a legislative regime that more effectively accomplishes its goals by relying less on whether people are living in particular kinds of relationships. The Law Commission proposes a new methodology for assessing any existing or proposed law that employs relational terms to accomplish its objectives. It consists of four questions.
First Question: Are the objectives of the law legitimate?
If not, should the law be repealed or fundamentally revised?
Second Question: Do relationships matter?
If the law's objectives are sound, are the relationships included in the law important or relevant to the law's objectives?
Third Question: If relationships matter, can individuals be permitted to designate the relevant relationships themselves?
Could the law allow individuals to choose which of their close personal relationships they want to be subject to the particular law?
Fourth Question: If relationships matter, and self-designation is not feasible or appropriate, is there a better way to include relationships?
If relationships do matter, and public policy requires that the law delineate the relevant relationships to which it applies, can the law be revised to more accurately capture the relevant range of relationships? This question applies where it is not possible to individualize rights and responsibilities, nor to allocate them on a basis of self-designation. Where the state must ascribe rights and responsibilities to achieve its objectives, it would be preferable to more carefully tailor laws to take into account the functional attributes of particular relationships.
The Report recommends that Parliament apply this four-step methodology in the development and implementation of all future law and programs. In Chapter Three, this methodology is applied to a variety of federal statutory provisions that rely on relational status. Examples are drawn from the Marine Liability Act, the Canada Labour Code, the Immigration Act, the Canada Evidence Act, the Employment Insurance Act, the Bankruptcy and Insolvency Act, the Bank Act, the Income Tax Act, the Old Age Security Act and the Canada Pension Plan.
The Report considers statutory provisions where the law makes presumptions based on relational status in order to achieve objectives that are not necessarily or exclusively connected to the targeted relationships. For example, under the Employment Insurance Act, employees who are related to their employer must prove their employment was similar to an arm's length relationship in order to be eligible for employment insurance, a burden of proof that is difficult for them to satisfy in practice. If the purpose of the provision is to guard against sham employment contracts set up just to claim benefits, it should do that by examining the features of any employment contract, not just those among family members.
Fraudulent preference provisions in the Bankruptcy and Insolvency Act and conflict of interest provisions in the Bank Act similarly target only family members. In so doing, they miss capturing all persons who may be receiving preferential treatment from a bankrupt person or a bank officer because of a personal relationship that is outside the family categories defined in those Acts. The Report recommends amending these provisions to reduce the emphasis on certain types of relationships. Canada Evidence Act In the section on the Canada Evidence Act, the Report considers the limits on spousal testimony in criminal trials. There are two basic problems with the current regime. First, it can lead to the exclusion from the trial process of relevant and probative evidence in circumstances where the state's interest in discovering the truth outweighs the relational interests at stake. Second, in circumstances where the relational interests at stake do outweigh the state's interest in discovering the truth, the law protects only marital relationships. Clearly there are other personal relationships that are worthy of legal protection. As a result, a consensus exists that the law in this area needs to be reformed.
The Report recommends removal of the common law rule that a spouse of the accused is not a competent witness for the Crown. Regarding non-compellability, the Report recommends an amendment to the Canada Evidence Act that would enable judges to excuse a witness from having to testify if he or she objects to testifying, has an ongoing close personal relationship with the accused, and the judge finds that the harm that would be caused to the witness or to the relationship by having to testify outweighs the desirability of admitting the testimony. Finally, it recommends replacing the marital communications privilege with an amendment to the Canada Evidence Act that enables judges to prevent the divulgence of a confidential communication if the witness has a close personal relationship with the accused at the time the communication was made, and the need to protect and promote candour and trust in close personal relationships outweighs the desirability of admitting the testimony. Income Tax Act Income tax has been used extensively as an instrument for delivering government subsidies and transfer payments to individuals. Therefore, the income tax legislation provides an excellent prism through which to examine the role of government in regulating close personal adult relationships. As a preliminary matter, the Report recommends retaining the individual as the basic unit for the calculation of income tax.
The Report goes on to look at some specific tax provisions that rely upon relational status. For example, in the area of dependent relative and spouse and common-law tax credits, the Report determines that the Income Tax Act could more accurately capture the range of relevant relationships. As a result, the Report recommends that Parliament replace the Income Tax Act's spouse and common-law partner tax credit with enhanced or new programs that more carefully target caregivers and children for direct income support. The Report also recommends that Parliament extend the tax credits for dependent relatives so that they can be claimed by any taxpayer who has provided financial or caregiving support to a person who is dependent by reason of age, disability or illness, without reference to relationship status, and that it consider extending income assistance to caregivers by making dependants' credits refundable or by delivering direct grants outside of the tax system. It further recommends that Parliament consider providing income support, by way of direct grants or refundable tax credits, to disabled people to enable them to hire or purchase the supports they require.
As a second example, the Report concludes that, while the rollover rules for transfers of property between spouses and common-law partners serve valid objectives, the provisions should be extended to all persons living together in economically interdependent relationships. This would make the targeted relationships more relevant to the objectives of the provisions: reducing the intrusiveness of the tax system in the lives of those with close personal relationships and encouraging the redistribution of property.
Other legislative provisions examined through the lens of the Commission's four-step methodology include provisions setting out eligibility for compensation for the accidental death or injury of a family member in the air or at sea; entitlement to caregiver leave or bereavement leave under the Canada Labour Code; income security programs under the Old Age Security Act; survivor's benefits under the Canada Pension Plan, and family sponsorship under the Immigration Act. In each of these cases, comparison of the objectives of the legislation with the means used to achieve them reveals that the provisions could be better tailored to achieve their aims more coherently.
In considering how state regulation can recognize and support close personal relationships in a more principled and coherent manner, the first task is to clarify the objectives of laws that take relationships into account and determine whether they are valid. The next question is whether relationships are relevant to those objectives. If not, the law should eliminate reliance on relational considerations and individualize the rights and responsibilities in question.
In those areas where relationships are relevant to the legislative objectives, we analyzed whether it is possible to allow individuals rather than governments to choose the relevant relationships. In other contexts, we suggested that some limits be placed on these choices, restricting self-selection to a limited range of relationships.
Where self-selection is not workable, we considered alternative ways for governments to include relationships in legislation and provided examples where relational definitions could be redrawn to cover the full range of relevant relationships. The Legal Organization of Personal RelationshipsPeople want stability and certainty in their personal relationships, as in other aspects of their lives. The state must provide adequate legal structures to support the relationships that citizens develop, structures that respect the values of equality, autonomy and choice. Marriage has long been the main vehicle by which two people publicly expressed their commitment to each other and sought to ensure certainty and stability in their own and their family's relationship. But marriage is no longer a sufficient model, given the variety of relationships that exist in Canada today. What legal frameworks can the state offer to respond to the need of all its citizens for certainty and stability in their personal relationships?
Four legal models can be used to regulate personal relationships: private law, ascription, registration and marriage. The private law model operates by default – when governments do not provide a legal framework, people are always at liberty to express their commitments through contracts. They can then turn to the courts when they feel that the other party has not fulfilled his or her contractual obligations. They may also rely on private law remedies, such as unjust enrichment or constructive trust. This mechanism is very burdensome. It can be costly, it favours the party with the greater resources or bargaining power and its after-the-fact remedies are uncertain.
Governments use ascription to prevent the risks of exploitation inherent in a contractual model by imposing (ascribing) a set of obligations on people in conjugal relationships that are presumed to correspond to the expectations of the majority of people involved in such relationships. While ascription may help to prevent exploitation, it is a blunt policy tool, treating all conjugal relationships alike. It infringes on autonomy, as people are not always aware they may opt out of certain provisions. While appropriate for conjugal relationships in some instances, it would be inappropriate for non-conjugal relationships.
Recently, there has been a move toward the creation of a new status, often called registered partnership. Its objective is to provide an alternative way for the state to recognize and support close personal relationships. When people register their relationships, a range of rights and responsibilities are then open to them. Registrations provide an orderly framework in which people can express their commitment to each other, receive public recognition and support, and voluntarily assume a range of legal rights and obligations. These regimes may also provide for an orderly and equitable resolution of the registrants' affairs if their relationship breaks down.
Registration schemes merit consideration because they provide a vehicle for recognizing a broader range of caring and supportive relationships, both conjugal and non-conjugal. They affirm the autonomy and choices of Canadians in their close personal relationships, offering the opportunity for public declarations of commitment that will be respected by government. Registration also does not compromise privacy within a relationship in the way that ascription often does. Designing a Registration Scheme1. Formal AttributesThere is no reason for governments to restrict a registration scheme to conjugal couples or only to same-sex couples. We also see no compelling reason to impose a residential requirement on registrations, just as there is no requirement that married couples live together. Registrations should be terminable by mutual agreement. Registered partners should also be able to register a unilateral dissolution of their registration. The state should ensure that the legal obligations and reasonable expectations of the registrants are respected when the relationship breaks down. 2. Legal Implications of RegistrationsRegistration should provide options to registrants: for example, models of predetermined rights and responsibilities reflecting a conjugal relationship or a variety of caregiving relationships.
The legal consequences of registration might be limited to the private rights and responsibilities within the relationship – both during and after the relationship. Registration would be about clarifying the mutual responsibilities each party is voluntarily assuming, both for the parties themselves and for potentially interested third parties. 3. Intergovernmental and International ImplicationsAlthough the federal government has constitutional jurisdiction over marriage and divorce, including support and custody issues, it is unlikely that this jurisdiction would allow it to enact a registration regime that regulates the private legal obligations between adults in close personal relationships or to pass legislation regulating entry into, or exit from, this new civil arrangement. The best scenario would be a coordinated initiative among the federal, provincial and territorial governments.
On the international level, Canada should participate in the efforts toward international recognition of registration systems. It should also attempt to design its international arrangements on the basis of the existence of a variety of relationships and move toward an international recognition of registrations. MarriageIn assessing whether our marriage laws continue to meet the needs of our evolving society, a first fundamental question is whether we need marriage laws at all. Could registration replace marriage, for all legal purposes? Would this better serve the objectives of the state? Registration Instead of MarriageA registration scheme could be used to replace marriage as a legal institution. Religious marriage ceremonies would continue to exist, but they would no longer have legal consequences. Only a system of civil registration would bind two people to a range of legal rights and responsibilities, and any two people who wanted to obtain public recognition and support of their relationship could register. We conclude that, while further debate about the appropriate role of the state in marriage is worthwhile, removing marriage as a legal mechanism for expressing commitment in a personal relationship is unlikely to be an attractive option for the majority of Canadians currently. Adequacy of Current Marriage LawsAn historical overview of marriage in the Western world shows that church and state have had varying degrees of control over this institution. In some countries, like France, the state has had exclusive jurisdiction over marriage for centuries, although of course people continue to participate in religious ceremonies. In Canada, civil marriage and religious marriage co-exist. Although it may be appropriate to revisit the role of religious authorities as state-delegates for the purpose of marriage celebrations, and consider adopting a regime that requires a civil ceremony for the marriage to have legal effect, it does lead to duplication for those who want a religious ceremony.
The state's interest in marriage is not connected to the promotion of a particular conception of appropriate gender roles, nor is it to reserve procreation and the raising of children to marriage. The state's objectives underlying contemporary regulation of marriage relate essentially to the facilitation of private ordering: providing an orderly framework in which people can express their commitment to each other, receive public recognition and support, and voluntarily assume a range of legal rights and obligations. As the Supreme Court of Canada recognized in 1999 (M. v. H.), the capacity to form conjugal relationships characterized by emotional and economic interdependence has nothing to do with sexual orientation. If governments are to continue to maintain an institution called marriage, they cannot do so in a discriminatory fashion. Accordingly, the Report recommends that Parliament and provincial/territorial legislatures move toward repealing legislative restrictions on marriages between persons of the same sex. ConclusionIn this Report, we argue that governments have tended to rely too heavily on conjugal relationships in accomplishing important state objectives. Rather than advocating simply that the law cover a broader range of relationships, the Law Commission is of the view that it is time for governments to re-evaluate the way in which they regulate personal adult relationships.
We are suggesting a new methodology for addressing the legal regulation of these relationships, consisting of four questions. Are the objectives of the legislation legitimate? If so, are relationships relevant to achieving them? If they are relevant, can individuals themselves choose which relationships should be subject to the law? Finally, if relationships are relevant and self-designation is not feasible, is there a better way for governments to include relationships?
Implementation of this methodology would greatly diminish government reliance on relationship status. However, the state would still have an important role to play with respect to personal relationships, providing the legal framework for the voluntary assumption of rights and obligations between the two parties. It should broaden the range of relationships that receive this kind of state recognition and support through the creation of a registration scheme and the legalization of same-sex marriage. Acknowledgements The Law Commission of Canada wishes to acknowledge the contribution of several people to this Report. It benefited enormously from the counsel and insight of members of its Study Panels, whose names appear below: Wendy Adams, France Allard, Tom Anderson, Pat Armstrong, Katherine Arnup, Michael Bach, Martha Bailey, Sharon Bond, Susan Boyd, Gwen Brodsky, Michèle Caron, Andrée Côté, Michel Côté, Shelagh Day, Margaret Denike, Pamela Dickey Young, Margrit Eichler, John Fisher, Catherine Frazee, Robert Glossop, Dominique Goubau, Teresa Janz, Olga Kits, Kathleen Lahey, Marcel Lauzière, Nicole LaViolette, Hugues Lévesque, Diana Majury, Claudine Ouellet, Carol Rogerson, Carolyn Rowe, Diane Rowe, Alain Roy, Ros Salvador, Liliane Spector, Monica Townson, Frances Woolley and Claire Young. The Law Commission also received much help in the form of background research from the following scholars and organizations: Pat Armstrong, Katherine Arnup, Martha Bailey, the British Columbia Law Institute, Gwen Brodsky, Neil Brooks, Brenda Cossman, Martin Daly, Wendy Danson, Shelagh Day, Connie Dieter, EGALE Canada (John Fisher, Kathleen Lahey and Laurie Arron), Winifred Holland, Teresa Janz, Olga Kits, Kathleen Lahey, Nicole LaViolette, Brigitte Lefebvre, Allan Manson, The Roeher Institute (Michael Bach, Catherine Frazee, Orville Endicott and Phyllis Gordon), Alain Roy, Bruce Ryder, Monica Townson, Margo Wilson, Claire Young and Shauna Van Praagh. Our special thanks as well to the participants in the Domestic Partnerships Conference at Queen's University organized by Professor Martha Bailey in 1999, and the International Family Law Conference (2001) held at Queen's University and organized by Professor Nicholas Bala. Both events were a great source of inspiration and ideas.
We would also like to thank all those who participated in our consultations and sent in their comments and insights, especially Mary Lou Dickey, who reviewed the final draft. Our thanks go out to Neil Brooks, Monica Townson, Nicole LaViolette and Francine Pelletier (moderator) for having participated in the Law Commission's webcast in January 2001.
Recognition must also go to Roderick A. MacDonald, former President of the Law Commission of Canada, who developed the initial vision for this project, and to Stephen Owen, Commissioner, who greatly contributed to this project prior to the end of his term with the Law Commission.
Within the Law Commission, Research Officer Susan Alter managed this project from its beginnings until her departure in the summer of 2001. She asked the right questions, administered the research, organized the consultations and worked on earlier drafts, and we gratefully acknowledge her enormous contribution. Susan Zimmerman, Director of Research, was instrumental in overseeing the enormous job of putting together a report of this magnitude. We also thank her for continuing to provide insight after her departure and for drafting the Executive Summary to this Report. We want to acknowledge the work of Research Officer Lorraine Pelot, who stepped in during the last few months of this project and helped to pull together and fine-tune the final portions of the Report. We must also thank Lucie Gagné, Annie Di Palma and Lise Traversy, who worked very hard on the consultations, webcast and production of this Report, along with Bruno Bonneville, Executive Director, and Suzanne Schreyer-Belair, Senior Administration Officer, whose work is invaluable to the Law Commission. Thank you to all the staff who contributed in various ways.
The work of full-time staff was capably supplemented by a number of part-time researchers. A valuable contribution was made by our student researchers Simon Archer, Patricia De Sario, Karen Gorby, Sofia Gutierrez, Shauna Labman, William MacLarkey and Robert Poirier.
The Law Commission owes an enormous debt of gratitude to Bruce Ryder, who held the pen on this Report, integrating the many pieces of research that others prepared for the Commission and weaving the various sections together. We also want to recognize the important contribution of Brenda Cossman, who, along with Bruce, drafted earlier versions of this Report.
Ultimately, the views expressed in this Report, along with any errors or omissions, are the responsibility of the Commissioners. Introduction Canadians enjoy a wide variety of close personal relationships that are important to them. Many marry or live with conjugal partners. Others have emotional and economically important relationships outside of marriage and conjugality. They may share a home with parents, with grandparents or with a caregiver. Sometimes it may be sisters. Other times, best friends.
Making choices in one's personal relationships is among the most cherished of values in Canadian society. Indeed, the right to freedom of choice in one's close relationships is one that we take for granted. As individuals, we each enter relationships for very personal reasons and expect that these choices will be respected. Canadians expect that governments will respect their autonomy and beliefs in the legal regulation of these personal relationships.
People value their close personal relationships for the quality of care and support they provide. Intimates usually provide the most meaningful forms of care and support, such as sharing resources to provide food, shelter and clothing, providing personal services and guidance, attending to emotional needs, volunteering information or advice, or using abilities or skills to offer assistance in solving problems. Many studies have shown that individuals' physical and mental well-being is often related to the quality of social support in their lives.1 Of course, not all close personal relationships deliver care and comfort to adults; intimacy and interdependency give rise to vulnerability and thus to opportunities for abuse.
The state cannot create healthy relationships; it can only seek to foster the conditions in which close personal relationships that are reasonably equal, mutually committed, respectful and safe can flourish. Governments have long regulated close personal adult relationships in a number of ways. Some government regulation is related to benefits and obligations that flow between citizens and the government or employers and creditors. Other regulation is aimed at the rights and responsibilities that flow between people within the relationship. Governments are pursuing a number of objectives in regulating close personal adult relationships, such as recognizing economic interdependence, promoting the stability of relationships, protecting people's expectations, encouraging the provision of care and preventing exploitation and abuse. In doing so, governments have chosen to focus on particular types of relationships.
Through the legal regulation of personal adult relationships, the state has recognized and supported some relationships but failed to recognize others; as a result, people's choices are not being respected. The law at one time focused almost all of its attention on marital relationships to the exclusion of other personal adult relationships. Legislatures and Parliament have taken important steps to narrow the gap between legal assumptions and social realities, but while the law currently recognizes and supports personal relationships beyond marriage, it continues to be centred mainly on conjugal relationships.
By focusing mainly on conjugal relationships, governments have made statutes both under-inclusive and over-inclusive – that is, the statutes may not cover all the people intended, or they may apply to people they were not intended to cover. There are many instances where the law imposes rights and responsibilities on the basis of a particular kind of relationship, rather than examining the nature of that relationship. In other words, rights and responsibilities are imposed on the basis of the status rather than the function of a relationship.
The problem is not only one of failing to recognize important relationships. Oftentimes, the law simply assumes that relationships are relevant in achieving government objectives. For example, the law might simply assume that a married or common-law couple pool their resources. While this is no doubt often the case, it is certainly not always true. There are many instances where the law simply imposes rights and responsibilities on the basis of a relationship, rather than considering whether that relationship really is relevant to the law or program in question.
In keeping with its mandate to consider measures that will make the legal system more efficient, economical, accessible and just, the Law Commission of Canada examined the regulation of close personal adult relationships. The goal was to determine how well law and policy were responding to contemporary realities. From 1999 to 2001, numerous research papers were commissioned and many consultations were held with Canadians, ranging from expert study panels and consultations with community groups to an interactive webcast. The Law Commission received many stories and submissions during its consultations in which Canadians described the multiplicity of relationships in which they live and expressed the multiplicity of views that they hold about how these relationships should be governed. The Law Commission heard from hundreds of Canadians, many of whom reported that current laws and policies were not working.
In this Report, the Law Commission considers the ways in which the law should recognize and support close personal relationships between adults. This is not to say that other very close personal relationships, such as intergenerational relationships that involve the rearing of children, are not important. Clearly, they are. But they raise very different issues. The focus in this Report is on interdependent relationships between adults: those personal relationships that are distinguished by mutual care and concern, the expectation of some form of an enduring bond, sometimes a deep commitment, and a range of interdependencies – emotional and economic – that arise from these features. A focus on relationships defined by these functions rather than status is more consonant with the objectives pursued by governments. These economically and emotionally interdependent relationships are one of the very foundations of Canadian social life. They may or may not involve parenting responsibilities that certainly influence the range of interdependencies created. They may or may not involve sexual intimacy. They may or may not be characterized by deep economic interdependency. Governments need to ensure that the law respects the diverse choices that Canadians make.
Instead of simply arguing that some relationships that are currently excluded (such as non-conjugal relationships) should be included, the Law Commission also believes that it is time to rethink the way in which governments regulate relationships. Governments need to reconsider the more fundamental questions of when and why relationships should matter. This Report offers some guidance as to how governments can achieve their legitimate objectives while respecting the importance and diversity of personal relationships.
Chapter One begins with a consideration of the importance and diversity of close personal relationships that are found in Canadian society today. The chapter examines the diversity of close personal relationships, tracing the major demographic trends that have occurred in the nature of Canadian adults' close personal relationships, including the prevalence of non-marital cohabitation, adult children remaining at home and an aging population. This increasing diversity of close personal relationships poses significant challenges to the regulation of these relationships.
Chapter Two outlines the values that should animate the regulation of relationships: values such as equality and autonomy, as well as principles related to privacy, personal security, freedom of conscience and religion, coherence and efficiency.
Chapter Three turns to the question of redesigning the legal regulation of personal adult relationships. A new four-step methodology is presented as a tool for rethinking the way in which relationships have been regulated. Four questions are asked. First, are the objectives of the legislation or policy still legitimate? Second, are relationships relevant to the objective at hand? Third, assuming that relationships are relevant, could the law allow individuals to decide for themselves which of their close personal relationships should be subject to the law? Finally, assuming that relationships do matter, and self-selection of relationships will not work, is there a better way for the government to include relationships? Following the presentation of the methodology, it is applied to specific areas of the law to illustrate how this approach might lead to laws that are more responsive to the situations and needs of people in Canada.
Chapter Four addresses the nature of the state's role and interest in designing instruments for the legal organization of personal relationships. What should the state's role be in relation to committed relationships? The chapter reviews the role of private law and the ascription of "spousal" status on unmarried people in providing for the establishment of rights and responsibilities between individuals. It goes on to consider other mechanisms through which the state might recognize and support relationships of commitment, mechanisms such as registration schemes and marriage.
The diversity of relationships in Canadian society is a reality. It is something to be cherished and respected. For many Canadians, the relationships that they hold dear, their close personal relationships, as varied as they are, constitute an important source of comfort and what helps them continue to be productive members of society. In responding to this variety of relationships, governments have often moved to extend rights and benefits on the basis of conjugality. The Law Commission suggests that it is time to go beyond conjugality and to look at the reality of interdependencies that exist in other relationships as well. ________________________________ 1 B.R. Sarason, I.G. Sarason and R.A. Gurung, "Close Personal Relationships and Health Outcomes: A Key to the Role of Social Support" in S. Duck ed., Handbook of Personal Relationships: Section V. Clinical and Community Psychology (New York: John Wiley & Sons, 2nd ed. 1997) at 551.
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