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29/01/2002

Beyond Conjugality : Recognizing and supporting close personal adult relationships

Nathalie Des Rosiers

President, Law Commission of Canada

Check against delivery

January 29, 2002

Ottawa (Ontario)

Yesterday, the Minister of Justice tabled in the House of Commons the report from the Law Commission of Canada entitled "Beyond Conjugality: Recognizing and Supporting close personal adult relationships".

It is in fulfilling its mandate to consider measures that will make the legal system more efficient, economical, accessible and just, that 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 and emerging needs.

From 1999 to 2001, numerous research papers were commissioned and many consultations were held with Canadians, ranging from experts study panels and consultations with community groups to an interactive consultation on the internet.

The Law Commission of Canada received many stories and submissions during its consultations in which Canadians described the variety of relationships in which they live. Many Canadians reported that current laws and policies were not working.

Beyond Conjugality

Canadians enjoy a wide variety of close personal adult relationships - many marry or live with conjugal partners while others may share a home with parents, grandparents or a caregiver.

Canadian law supports and protects close personal relationships between adults. Most often, it has used the most visible of these relationships - that between wife and husband - as a proxy for all close relationships when developing policies and programs.

A comprehensive examination of close personal adult relationships must be undertaken. Statutes appear both under-inclusive and over-inclusive - that is they may not cover all relationships or they may apply to too many.

We must rethink the criteria used to identify target the beneficiaries of government programs.

The report of Law Commission of Canada invites governments to pursue a more comprehensive and principled approach to the legal recognition and support of the full range of close personal relationships among adults.

A wide variety of Canadian laws give benefits to or impose responsibilities and obligations on people because they live in close personal adult relationships. Tax, immigration, and criminal statutes are just some of the laws where adult relationships come into play. For example, apart from the Income Tax Act, there are more than 1,800 sections in federal statutes that use terms like spouse, husband and so on, to describe close personal relationships between adults.

Many of these laws are based on assumptions about how people organize their personal lives, who they live with, trust, care for and depend on to meet their life needs. In today's world where adult relationships and family patterns are continually changing, some of these assumptions are out of date or inaccurate. As a result, some of these laws apply to more people than perhaps they should, whereas others might exclude people who should be included.

In Beyond Conjugality, the Law Commission of Canada proposes a methodology to examine the appropriateness of the laws. Using the methodology to review some laws, the Law Commission finds that a number of laws, such as the Immigration Act, the Canada Labour Code, the Employment Insurance Act, the Income Tax Act and the Canada Evidence Act could better respond to adult relationships in a way that promotes autonomy and equality.

Instead of simply arguing that some relationships that are currently excluded (such as non-conjugal) should be included, the Law Commission is of the view that it is time to use a new methodology for determining whether and in which way relationships should be used as a vehicle for achieving a variety of policy objectives.

The report recommends that governments apply a four-step methodology in the development and implementation of all future law and programs. This methodology invites governments to first clarify the objectives of the legislation or policy, to determine whether in fact relationships are relevant to the accomplishment of the objective, to allow, if possible, citizens to designate themselves the relationships that are most important to them and to target relationships on the basis of their function, such as economic interdependence, rather than their 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 legal organization of personal relationships

People 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 express their commitment to each other and seek 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. In addition, if governments are to continue to maintain an institution called marriage, they cannot do so in a discriminatory fashion.

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 also provide for an orderly and equitable resolution of the registrant's affairs if their relationship breaks down.

Marriage allows people to obtain public recognition and support of their relationships while voluntarily assuming rights and obligations towards each other. The State's role in marriage is to provide a legal framework to facilitate this assumption of rights and obligations, irrespective of sexual orientation.

In Beyond Conjugality, the Law Commission of Canada argues 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 ways in which they regulate personal adult relationships.