October 27, 2010
25.4.145
Background
The employee is grieving the employer's interpretation of 2.01 – the definition of dependant and spouse and common-law partner. The grievor is requesting to have the civil union to her partner be considered as meeting the intent of the FSDs; that she be reimbursed for the added expenses caused by the civil union and by being forced into a marriage; and that the FSDs are changed to consider civil unions.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that for the purposes of the FSDs, civil unions should have the same value as marriage. There are a variety of reasons as to why couples may not be able to meet the twelve month cohabitation period including: work related absences, illness, education, etc. These reasons should not preclude couples from receiving the benefits under the FSDs.
In this case, although the grievor and the grievor's spouse do not meet this definition of "spouse or common-law partner" in accordance with FSD 2.01(aa), it is believed that the FSDs should be revised to include the recognition of civil unions and that FSD Client Advisors be properly informed and instructed so that civil unions are deemed to fall within the intent, purpose, and principles of the FSDs.
Departmental Presentation
The Departmental representative indicated that in accordance with discussions with legal services, couples who have entered into a provincially registered domestic partnership – such as a civil union in Québec, a registered common-law relationship in Manitoba, or a registered domestic partnership in Nova Scotia can still be recognized for the purposes of federal law if they meet the definition of "common-law partner".
It was noted that the grievor and the grievor's spouse, prior to their marriage, did not meet the definition of FSD 2.01(aa) – Spouse or common-law partner, as they had not been cohabitating continuously for a minimum of one year. As such, their civil union in Québec is not recognized for the purposes of federal law.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the FSD Committee which concluded that the grievor was treated within the intent of Foreign Service Directives. It was noted that the Government of Canada does not recognize Quebec civil unions as these relationships are created by provincial statute for the purposes of provincial law and have no application nor recognition outside their jurisdictional boundaries. Quebec civil union partners are only recognized under federal jurisdiction once they have met the definition of a common-law partner and hence cohabitated for a twelve month period.
As the grievor and partner did not cohabitate for a twelve month period prior to their marriage and their civil union is not recognized, the grievors do not meet the definition of spouse or common-law partner under FSD 2.01(aa). As such, the grievance was denied. The NJC does not have the ability to address this issue and does not have jurisdiction to grant reimbursement of expenses.
The Executive Committee requested the Foreign Service Directives Committee to draft a communiqué clarifying this issue for its review.