Laurie H. Pawlitza: As this Ontario case shows, there is no bright line when determining who is a 'spouse'

Who qualifies as a common-law spouse? And what are the implications of being “common law”?

As with many questions asked of family law lawyers, the answer is “it depends.”

Distroscale

The definition of “spouse” differs, depending on the legislation under which a person seeks relief. For example, tax relief under the federal Income Tax Act requires cohabitation of only one year.

In British Columbia, an unmarried couple cohabiting for two years can make both spousal support and property claims against the other.

Sorry, there appears to be an issue loading this element.

In Ontario, while spousal support claims can be made after three years of unmarried cohabitation, there is no statutory right to make property claims against the other, no matter how long the unmarried couple has lived together.

To claim spousal support, the Ontario Family Law Act requires that an unmarried couple must have “cohabited continuously for a period of not less than three years.” “Cohabit” is defined as “to live together in a conjugal relationship … outside marriage.”

Story continues below This advertisement has not loaded yet, but your article continues below.

Many couples are in a committed relationship but maintain separate residences. In these circumstances, can there be a claim for spousal support?

Justice Sharon Shore of the Superior Court of Ontario considered this issue in a decision delivered in February of this year.

In the case, the parties started their relationship in 2001 when the woman was 38 and the man was 46; the relationship ended some 14 years later, in 2015.

When their relationship started, the woman, a former model, was earning $60,000 per year; the man was very wealthy.

Each had children by a former spouse. The woman was the primary parent of her two children, and lived a few blocks from the man.

Within a month of their initial meeting, the man began to pay all of the expenses for the woman’s home, gave her a monthly allowance, access to credit cards, a car, and medical/dental insurance. He also paid all of their expenses when they were together, including luxury holidays which often included trips on a private jet. The woman stopped working when he started paying her expenses. The couple spent most of each summer together at his cottage, and for much of each winter, spent time regularly at his condo in Florida.

Story continues below This advertisement has not loaded yet, but your article continues below.

Nevertheless, for the entirety of their fourteen-year relationship, each maintained their own Toronto home.

At trial, the man said that the woman was merely a travel companion, and that throughout their relationship, he told her that he would not share a Toronto home unless she signed a cohabitation agreement.

While draft cohabitation agreements were prepared, no cohabitation agreement was ever signed.

At trial, the woman said that they had separate residences because of child-related obligations.

Justice Shore analyzed the evidence given by both parties and their witnesses in considerable detail. Finding much of the evidence self-serving, Her Honour understandably adopted the reasoning in MacMillan-Dekker v. Dekker, saying, “Objective contemporaneous evidence is far more probative of the nature of the parties’ relationship than the (oral) evidence of the parties in the midst of acrimonious and bitter proceedings.”

The facts on which Her Honour relied included that the man often referred to the woman as having his last name and provided very generous gifts to the woman and her children. Her Honour found that the parties had dinner together almost every night at one of their homes, and that the man filled in the woman’s passport information using his home address and named his brother as her emergency contact, referring to him as her “brother-in-law.”

Her Honour found that the woman and her family were invited regularly to extended family events, and noted that she had walked down the aisle with the man and stood under the wedding canopy with him at his daughter’s wedding.

Story continues below This advertisement has not loaded yet, but your article continues below.

In addition, Justice Shore found that the man had asked the woman to marry him and that over the course of several years, they had exchanged rings. The parties also celebrated the anniversary of their meeting annually.

Nevertheless, the definition of “spouse” under the Family Law Act requires that to qualify as a “spouse,” the parties must “live together in a conjugal relationship.”

In attempting to demonstrate that the woman was not a “spouse” and not entitled to claim spousal support, the man relied on the fact that they had never shared a Toronto home, had no joint bank accounts, and that there was no melding of their immediate family units over the years.

In deciding whether the woman was a “spouse,” Justice Shore reviewed factors commonly considered: Whether the parties shared shelter; their sexual and personal behaviour vis a vis the other; their social activities; any economic support given by one to the other; the intermingling of their families; and whether the parties were perceived socially as a couple.

While Justice Shore acknowledged that in 1999, the Supreme Court of Canada in M. v H., said “that the definition of “conjugal” was “contextual and flexible” with the weight to be given to the various facts varying “widely and almost infinitely,” she noted that the parties had not shared a Toronto home over their 14-year relationship.

Ultimately, however, Justice Shore decided that “separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one’s children…. Intention of (the) parties is important. Where 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.”

Justice Shore found that the woman qualified as a “spouse,” saying “the dynamic of their relationship was such that all of the elements were present to some degree or another, but when viewed all together, lead to the conclusion that they were spouses.”

The case confirms that there is no bright line when determining who is a “spouse.”