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Beyond Conjugality

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Beyond Conjugality Beyond Conjugality Recognizing and supporting close personal adult relationships LAW COMMISSION OF CANADA COMMISSION DU DROIT DU CANADA Beyond Conjugality Recognizing and supporting close personal adult relationships LAW COMMISSION OF CANADA COMMISSION DU DROIT DU CANADA 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 Gwen Boniface President Commissioner Alan Buchanan Roderick Wood Bernard Colas Commissioner Commissioner Commissioner i Table of Contents Letter of Transmittal ................................................................................................. i Executive Summary ................................................................................................. ix Acknowledgements ................................................................................................ xxi Introduction ........................................................................................................... xxiii Chapter One: The Diversity of Personal Adult Relationships.................... 1 Conjugal Relationships ........................................................................................ 2 Non-Conjugal Households and Non-Conjugal Relationships ..................... 4 Non-Conjugal Relationships Between Relatives ...................................... 4 Non-Conjugal Relationships Between Non-Relatives ............................ 4 Caregiving Relationships ..................................................................................... 5 Conclusion ............................................................................................................. 6 Chapter Two: Fundamental Values and Principles ...................................... 13 Fundamental Values ........................................................................................... 13 Equality ......................................................................................................... 13 Relational Equality ............................................................................... 13 Equality Within Relationships ........................................................... 16 Autonomy ..................................................................................................... 17 Other Principles and Values ............................................................................. 19 Personal Security ......................................................................................... 19 Privacy ........................................................................................................... 20 Freedom of Conscience and Religion ..................................................... 22 Coherence ..................................................................................................... 23 Efficiency ...................................................................................................... 24 Conclusion ........................................................................................................... 24 Chapter Three: Reconsidering the Relevance of Relationships .............. 29 Part 1: Methodology................................................................................................ 29 A New Methodology: Four Questions ........................................................... 30 1. Are the Objectives Legitimate?............................................................. 30 Recommendation 1 Review Objectives ........................................ 31 iii 2. Do Relationships Matter? ...................................................................... 31 Recommendation 2 Relevancy of Relationships ........................ 32 3. Is Self-Designation Possible? ................................................................ 32 Recommendation 3 Self-Designation ........................................... 33 4. Is There a Better Way to Include Relationships?............................... 33 (a) Uniform Definition ....................................................................... 34 (b)Tailoring Definitions ...................................................................... 35 Recommendation 4 Targeting Relationships ............................... 36 Recommendation 5 Four-step Methodology .............................. 36 Part 2: Application................................................................................................... 37 I. The Marine Liability Act: Compensating for Negligently Caused Harm to Relationships ............................................................... 37 Recommendation 6 Relational Loss .............................................. 40 II. The Canada Labour Code: Relationships and Leave from Employment .............................................................................................. 40 Bereavement Leave .............................................................................. 40 Recommendation 7 Self-Designation.................................... 41 Caregiver Leave .................................................................................... 41 Recommendation 8 Self-Designation.................................... 43 III. The Immigration Act: Family Sponsorship .............................................. 43 Recommendation 9 Sponsorship Provisions ............................... 46 IV. The Canada Evidence Act: Limits on Spousal Testimony in Criminal Trials ............................................................................................................ 46 The Need for Reform ......................................................................... 46 Common Law Background ................................................................ 47 Statutory Alteration of the Common Law ...................................... 48 Reconsidering the Rules...................................................................... 49 Spousal Incompetence................................................................. 49 Recommendation 10 Repeal Common Law Rule ............... 50 Spousal Non-Compellability....................................................... 50 Marital Communications Privilege ............................................ 52 The Australian Balancing Approach ......................................... 53 Recommendation 11 Spousal Non-Compellability ............. 55 Recommendation 12 Marital Communications Privilege .......................................................................................... 55 V. The Employment Insurance Act: Preventing Fraud .................................. 55 Recommendation 13 Irrebuttable Presumptions........................ 56 Recommendation 14 Rebuttable Presumptions.......................... 57 iv LAW COMMISSION OF CANADA Defining Insurable Employment ...................................................... 57 Recommendation 15 Presumption of Uninsurability ................ 59 VI. The Bankruptcy and Insolvency Act: Protecting Creditors Interests .... 59 Reviewable Transactions ..................................................................... 60 Recommendation 16 All Transactions .......................................... 61 Fraudulent Preferences ....................................................................... 61 Recommendation 17 Knowledge of Insolvency ........................ 62 VII. The Bank Act: Avoiding Conflicts of Interest ..................................... 62 Recommendation 18 Regulation of Transactions ...................... 63 VIII.The Income Tax Act .................................................................................... 63 A. Purposes of the Laws of Income Tax ........................................ 63 Technical Tax Provisions ............................................................ 64 Tax Expenditures ......................................................................... 64 B. The Basic Taxpaying Unit.............................................................. 65 General ........................................................................................... 65 Background ................................................................................... 67 Empirical Case for Individual Taxation.................................... 68 Normative Case for Individual Taxation.................................. 68 Effect of Family-Unit Taxation on the Role of Individuals in Personal Relationships ....................................... 70 Administrative Considerations ................................................... 71 Recommendation 19 Individual as the Basis ....................... 71 C. Specific Tax Provisions That Rely Upon Relational Status ..... 72 Dependent Relative Tax Credits ................................................ 72 Recommendation 20 Extend Tax Credits ....................
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