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On occasion, courts are asked to decide on parties’ relationship status for the purpose of determining whether they constitute common-law spouses. Under the Family Law Act, common-law spouses may claim spousal support. Section 29 of the Act deals with support obligations and defines a spouse as including persons who are not married to each other and have cohabited continuously for a period of not less than three years. The Act also defines “cohabit” as living together in a conjugal relationship either within or outside marriage. These cases raise the question of what constitutes a common law spouse, given that courts acknowledge the diversity of relationship situations and the fact that there is no archetypal relationship. Instead, the law has advanced to provide remedies and compensate parties where it can be determined that a spousal relationship existed.

The recent case of Boudreau v. Jakobsen saw one party appealing an order requiring her to pay spousal support after the trial judge found the pair to be common law spouses. The parties began living together in 1997 and moved into a house purchased by the appellant in 2008. The appellant paid the expenses for the pair throughout the relationship and financially supported the respondent. The respondent was named as a common law spouse and beneficiary in the applicant’s will, pension plan, and income tax return. They presented themselves as a couple. However, the appellant denied financially supporting the respondent maintaining that they were no more than friends and roommates.

How do Courts Determine if a Couple are Common-law Spouses?

A party alleging that they were in a spousal relationship carries the onus in proving that the parties lived together in a conjugal relationship. Courts have set out a non-exhaustive list of criteria to help determine whether a conjugal relationship exists. Molodowich v. Penttinen, establishes that courts may consider shared shelter, sexual and personal behaviour, social activities, economic support, services, and the societal perception of the parties as relevant to determining the status of a relationship. These factors may be present to varying degrees and it is not necessary to establish every one of them for the relationship to be conjugal.

Ascertaining whether parties have cohabited in a conjugal relationship involves both a subjective and objective test. The intention of the parties is important, but their stated intentions are not determinative of the matter. As Justice Wilson noted in Macmillan-Dekker v. Dekker, “objective contemporaneous evidence is more probative of the nature of the parties’ relationship than the viva voce evidence of the parties in the midst of acrimonious and bitter proceedings”. Consequently, courts will look at the objective evidence that may indicate a spousal relationship and test whether it conforms to the stated intentions. How the parties’ relationship is regarded by others in the community can be significant.

According to the court in McEachern v. Fry Estate [1993] OJ No. 1731, when there is a long period of companionship and commitment “and an acceptance by all who knew them as a couple, continuous cohabitation should be found”. Courts regularly acknowledge that each case will be fact specific and that there is no single model of a conjugal relationship. Rather, there are a set of factors that reflect the diversity of conjugal relationships, and those factors, when considered together, provide a flexible tool to examine relationships on a case-by-case basis. In Boudreau v. Jakobsen, having regard to the various factors, there was significant evidence that the parties had lived in a conjugal relationship for 21 years.

What Does it Mean to “Live Together?”

Establishing eligibility for support as a common-law spouse requires the parties to have lived together. Courts have had to weigh this requirement against relationships where parties maintain separate residences. That was the issue in Climans v. Latner. The parties maintained a relationship of almost 14 years but retained separate residences throughout. Nevertheless, Mr. Latner paid routine expenses and provided a monthly allowance, they took trips together, spent summers at a cottage, spent time at a Florida condominium, and had meals together.

The judge was satisfied that the criteria set out in Molodowich were present in the relationship between Ms. Climans and Mr. Latner, which led to the conclusion that the pair were in a conjugal relationship. The one issue that remained was whether they “lived together” as required by Ontario legislation despite maintaining two separate residences in Toronto. The trial court looked to a 2006 case, Stephen v. Stawecki, in which the parties each maintained their own home but were looking to purchase a home together. In that case the applicants advocated for a bright-line rule requiring the parties to have moved-in together to be considered to “live together”. The Court of Appeal declined to adopt a firm rule, noting that a variety of different relationships and living arrangements are possible with a firm rule inconsistent with the flexible approach to recognizing spousal relationships that the law required.

Intermittent Time Cohabiting Can Raise Spousal Support Entitlements

The fact that parties keep separate residences does not prevent a finding that they have cohabited in a conjugal relationship, as cohabitation is not synonymous with co-residence. In deciding relationship status courts will look at all of the circumstances of the parties’ relationship including the reasons for maintaining more than one residence. It is clear that two people can cohabit without living under the same roof, and in those cases where couples are not found to be spouses, the parties usually have not merged their financial affairs, performed domestic services, provided financial support, or socialized in public together. That was not the case for Ms. Climans and Mr. Latner, with the court determining that the two did live together based on the overall time they spent together.

Contact Boulby Weinberg LLP in Toronto for Advice on Spousal Support Matters

The lawyers at Boulby Weinberg LLP in Toronto focus exclusively on family law matters and regularly assist clients in resolving support issues. We can provide you with valuable information tailored to your unique situation so that you know what to expect and can understand your rights and obligations. To discuss your matter further or arrange a consultation please complete our online questionnaire or contact the firm at 647-494-0113 ext. 102.

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