In Canada, every person is afforded certain protections in the event they get divorced. For example, there are statutes in place to help determine how the couple will divide their property and whether one of them is entitled to child support or spousal support (and what amount). However, not every couple in a committed, long-term relationship chooses to get married. As a result, Ontario law has created a category of “common law” spouses and given them some (but not all) of the same protections given to married spouses in the event of death or breakdown of the relationship.
One of the most important protections given to common law spouses following the death of their partner is the ability to claim dependant support from the deceased spouse’s estate (for a full discussion of dependant support claims, click here). In deciding who qualifies as a “common law” spouse for the purposes of a dependant support claim, the Succession Law Reform Act uses the same definition as found at s. 29 of the Family Law Act (the “FLA”):
“spouse” means [two persons who are married to each other], and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child …
Where there are no children involved, then the key factors a court will look at in deciding whether two people are common law spouses is: (i) whether they have cohabited; and (ii) the length of time of the cohabitation. “Cohabit” is defined at s. 1(1) of the FLA to mean: “to live together in a conjugal relationship, whether within or outside marriage.”
It will come as no surprise when I say that human relationships are complex. A bright-line test to determine whether a couple is in a committed, long-term relationship is just as likely to exclude couples that society may agree should benefit from legislative protections. As a result, the courts have given an expansive definition to the meaning of “co-habit.” In particular, the courts have found that it is not necessary for couples to actually live together in the same house in order to meet this test.
The Ontario Court of Appeal reviewed the meaning of “spouse” and “cohabit” in Climans v. Latner, 2020 ONCA 554. In that case, Ms. Climans and Mr. Latner met in 2001 and remained in a romantic relationship with each other for the next 14 years. The couple broke up in 2015.
Ms. Climans was 38 when she met Mr. Latner, who was 46. Both had children from prior relationships. During the course of their courtship, they exchanged rings but never married. Ms. Climans left her job and was financially supported by Mr. Latner. Nevertheless, they never moved in with each other – both kept separate residences in Toronto. However, they would spend the summer months together at Mr. Latner’s Muskoka cottage and winter weekends in Florida.
When they broke up, Ms. Climans was almost 52 years old and Mr. Latner was around 60. Having been financially dependent on Mr. Latner for the last decade, Ms. Climans brought an application for spousal support in an amount commensurate with the style of living they enjoyed while together.
In reaching her decision, the trial judge considered Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), which sets out a non-exhaustive list of criteria to be considered in determining whether a conjugal relationship exists:
- shared shelter;
- sexual and personal behaviour;
- social activities;
- economic support;
- children; and
- the social perception of the couple.
The trial judge concluded that Ms. Climans and Mr. Latner easily met most of these factors. The one question that gave her pause was “shared shelter.” In order to answer that question, the trial judge turned to Stephen v. Stawecki (2006), 32 R.F.L. (6th) 282 (Ont. C.A.). In that case, the Court of Appeal declined to impose a bright-line rule requiring that two people must move in together to be considered as living together or cohabiting. Rather, the Court of Appeal found that specific living arrangements are only one of several factors in assessing whether or not parties are “cohabiting.”
Based on a comprehensive review of their relationship, the trial judge found that Ms. Climans and Mr. Latner did “live together” on a sufficiently regular basis that she could conclude they “cohabited.” The trial judge further found that the couple “cohabited” for over three years, meaning they met the definition of “spouse” pursuant to s. 29 of the FLA.
The Court of Appeal upheld the trial judge’s decision on this point, finding that the trial judge had correctly identified the legal test for determining common law “spouses” and correctly applied the legal test to the facts. However, the Court of Appeal modified the term of the support payments and the cost award.
The take home message is that there is no one factor that is determinative when deciding whether two people are common law “spouses.” Rather, the courts will take a holistic and flexible approach to the definition of “spouse,” considering all relevant factors. While messy, this is intuitively correct as relationships are often unique and change over time.