February 04, 2002
LAW COMMISSION OF CANADA REPORT: BEYOND CONJUGALITY
By: Susan Price-Livingston, Associate Attorney
You asked about the composition and duties of the Law Commission of Canada and for a summary of its recent report Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (copy enclosed).
An act of the Canadian Parliament established The Law Commission of Canada in 1997 as an independent departmental corporation accountable to the Parliament through the Minister of Justice. Its charge is to study and provide independent advice on improvements, modernization, and reforms to the legal system. The commission's powers include (1) conducting and evaluating studies and research; (2) funding studies and sponsoring conferences; and (3) supporting cooperative law reform efforts among the commission, governments, the academic community, the legal profession, and other organizations.
Canada's Governor-in-Council appoints its five commissioners on the recommendation of the Justice Minister. The commission, in turn, appoints up to 25 people from various disciplines and socio-economic backgrounds to serve on its Advisory Council. It may also appoint volunteer study panels and hire experts to provide advice on specific research projects or programs. The commission has a full-time executive director and research and support staff.
On December 21, 2001 the commission submitted to the Justice Minister its report on close personal adult relationships. This document (1) examines the array of personal adult relationships in Canada, (2) questions whether past government policies that draw distinctions based on conjugal status adequately accomplish their objectives in light of increasing numbers of other important adult relationships, and (3) recommends law revisions when relational status is a legitimate basis for government regulation.
A brief summary of the report and its recommendations follows.
BEYOND CONJUGALITY: RECOGNIZING AND SUPPORTING CLOSE PERSONAL ADULT RELATIONSHIPS
Between 1999 and 2001, the commission solicited research papers, supported expert study panels, and held conferences and meetings with interested parties to examine how well Canadian law and policy was responding to contemporary realities of close personal adult relationships. The report that grew out of those efforts offers recommendations on how Canada's national and local governments can achieve their legitimate objectives while respecting the importance and diversity of personal relationships.
The report starts with an examination of the major demographic trends in Canadian adults' close personal relationships, including the emerging prevalence of non-marital cohabitation, adult children remaining at home, and special caregiving or supportive relationships between elderly or disabled people. It suggests that existing Canadian law does not adequately support and protect these diverse relationships (pp. 1-6).
The report outlines the values that the commission suggests should animate state regulation of relationships: equality and autonomy; privacy, personal security, and freedom of conscience and religion; and legal coherence and efficiency (pp. 13-24).
Next, the report suggests that laws and policies taking relational status into account be subjected to the following four-step test:
1. Are their objectives still legitimate?
2. Are relationships relevant to these objectives?
3. If relationships are relevant, could the law allow individuals to decide for themselves which of their close personal relationships should be subject to the law?
4. If relationships do matter, and self-selection of relationships will not work, is there a better way for the government to include a broader array of relationships?
(pp. 29-36, Recommendations 1-5).
The commission applied these criteria to existing laws and policies and recommended specific changes to Parliament and state and territorial legislatures. It suggested revisions to admiralty, labor, evidence, public assistance, bankruptcy, tax, immigration, and various prohibited transaction laws that create classifications based on conjugal status. In most cases, these changes would direct judges and regulators to look at the factual or functional attributes of relationships rather than whether they fall within the "conjugal" or "non-conjugal" sphere (pp. 37-100, Recommendations 6-30).
It also suggested revisions to laws regulating personal relationships. Specifically, it recommended passage of laws enabling adults to register their relationships. In its view, registration should be available to both conjugal and non-conjugal couples. A set of legally enforceable commitments would be imposed on registrants, including caring arrangements, consent to treatment, support, and property sharing. Registration laws should include opt-out provisions, enabling registered couples to modify their mutual commitments where this would not be inequitable (pp. 113-122, Recommendations 31 and 32).
Finally, the commission recommended that legal regulation of civil marriage in Canada continue even if legislatures enact a registration scheme. It recommended that national and local governments move toward removing from their laws the restrictions on marriages between people of the same sex (pp. 122-131, Recommendation 33).