Living apart together relationships

May 6, 2021 | Christopher Crisman-Cox

Can two people qualify as “spouses” if they do not live together? This post looks at “living apart together” (or “LAT”) relationships from the perspective of spousal support.

Long-term, committed LAT relationships are not entirely uncommon. For a variety of reasons, a couple may live in separate residences. They may do so as a lifestyle choice, because they each enjoy having autonomous space. Or they may be practically forced to do so, perhaps as a result of working in different towns.

A LAT couple may still be considered “spouses” for the purposes of being entitled to support, depending on the particular circumstances of the relationship.

Most obviously, if a LAT couple has been legally married, then they will remain married even if they are living apart. As a married couple, they would qualify as spouses for support purposes under both the Divorce Act or the Family Law Act.

In the case of an unmarried LAT couple in Ontario, they will qualify as spouses for support purposes if they meet the requirements of section 29 of the Family Law Act. These requirements are different depending on whether or not the parties have a child together.

First, if the parties do not have a child together, then they need to “cohabit” for at least three years in order to qualify as spouses for support purposes. The legislation defines the term “cohabit” to mean “to live together in a conjugal relationship”. While it may seem like this implies that a couple needs to physically live together in order to qualify as spouses, the courts have interpreted this definition very flexibly. In order to determine whether a couple is “cohabiting”, the courts consider the following factors (as set out comprehensively in the oft-cited 1980 case of Molodowich v. Penttinen):

  • Shelter (what were the living arrangements of the parties?)
  • Sexual and personal behaviour (were the parties in a sexual relationship, how did they communicate, did they buy each other gifts, etc.)
  • Services (preparation of meals, washing/mending clothes, shopping, household maintenance, etc.)
  • Social  (participation in community activities, relationship with each other’s family and friends)
  • Societal (was the couple generally understood to be in a committed relationship?)
  • Financial (arrangement of finances, who purchased food, clothing, shelter, recreation, etc.)
  • Children (what was the attitude and conduct of the parties concerning children?)

No one factor is controlling. Rather, the court will look at the complete picture of the relationship. This means that an unmarried LAT couple can potentially qualify as “spouses” for support purposes, despite the fact that they do not physically live together.

If an LAT couple has a child together, then the test is different. As per section 29 of the Family Law Act, a couple with a child will qualify as spouses for support purposes if they are “cohabiting in a relationship of some permanence.” The term “relationship of some permanence” is an ambiguous phrase, which has been interpreted by the courts mostly on a case-by-case basis. But speaking very generally, if a LAT couple with a child has a well-established relationship of some kind, and the couple meets the test for “cohabiting” as per the list of factors above, then they will qualify as spouses for support purposes.

Whether or not an unmarried LAT couple are considered “spouses” for support purposes can obviously have significant financial implications in the event that the couple separates. If an LAT couple does not qualify as  spouses for support purposes, then they may be able to simply “walk away” when their relationship ends. On the other hand, if they are considered spouses, then one of the parties may need to assist the other with spousal support.

If you need legal advice regarding an LAT relationship or any other family issues, please contact the Miller Thomson family law team for assistance.

Disclaimer

This blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of this blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.