Living together, separately: Making a case for spousal support, without ever sharing an address

13 mai 2021 | Caroline Kim, Kaitlin Jagersky

( Disponible en anglais seulement )

Common law relationships are increasingly becoming the norm as more people are consciously choosing not to marry.  In Ontario, there remains to be a different set of legal rights, obligations and entitlements to those in a common law relationship versus those who are married. This includes standing to make a spousal support claim against your former spouse following the breakdown of your relationship.

Pursuant to the Ontario Family Law Act, common law spouses have an obligation to support not only themselves, but also the other spouse.1 Included in the definition of spouse are “two persons who are not married to each other and have cohabited continuously for a period of not less than three years.”[2] To cohabit together pursuant to the Family Law Act means “to live together in a conjugal relationship, whether within or outside a marriage”.”[3]

For many people, living in a common law relationship means sharing one home together; they do not always think that they are in a common law relationship with legal rights and obligations if they maintain separate addresses. However, cases in many Canadian jurisdictions suggest the contrary.  As early as 1980, Molodowich v. Penttinen[4]  set out criteria to be considered in deciding whether parties are living together in a conjugal relationship.  These criteria were adopted by the Supreme Court of Canada in M v. H[5] and have been applied across the country in cases ranging from family law cases to estates litigation. In fact, having only one address together is only one of the factors that a court can take into consideration when determining whether parties are in a relationship that gives rise to legal rights and obligations.

The Ontario Court of Appeal recently released a decision confirming, yet again, that parties who maintain separate residences may still be “spouses” and “cohabiting” under the Family Law Act.  This opens up the possibility for one person to ask the other for spousal support.

The case of Climans v. Latner[6] considered whether common law parties in a long-term romantic relationship, who did not have children together and chose to maintain their own homes, amounted to the threshold of “living together” in a conjugal relationship.

Following the breakdown of the parties’ fourteen year common law relationship, Ms. Climans commenced an application asking that she be recognized as Mr. Latner’s spouse and that he be required to pay ongoing spousal support to her. Mr. Latner disputed this claim, arguing that they had never married or cohabited together and as a result, Ms. Climans was not his spouse. Both parties submitted copious amounts of oral and physical evidence relating to the dynamic of their relationship, including their living arrangements as a couple (which included several intermittent periods wherein the parties shared a roof, such as overnight stays and time spent at a summer cottage and in Florida), their financial arrangements as a couple and third party evidence from numerous friends and family members regarding the perception of their relationship. The trial judge considered this evidence and ultimately found the couple were both living together and in a conjugal relationship. With these criteria met, the trial judge found that the parties were spouses pursuant to the Ontario Family Law Act and ordered indefinite spousal support of $53,077.00 per month payable by Mr. Latner to Ms. Climans.

Unsurprisingly, Mr. Latner appealed.

The Court of Appeal upheld the lower court’s finding that the parties were living together in a conjugal relationship.[7] However, the Court of Appeal held that the trial judge erred in finding that the parties’ conjugal relationship began immediately, and concluded that based on the evidence found at trial, the conjugal relationship actually began five months into their relationship. Because of this, the ‘rule of 65’ under the Spousal Support Advisory Guidelines was not met, and as a result, the Court of Appeal set aside the indefinite spousal support order and replaced it with a termination date of ten years.

These decisions provide helpful guidance for separating common law spouses who have not lived together in determining whether or not their relationship meets the definition of “spouse” under the Family Law Act, thereby permitting them to make a claim for spousal support.  The lack of a shared residence is not determinative of whether parties live together.  Couples may not officially share a residence, but you can still be found to be “living together”.”  Furthermore, living intermittently in a shared residence can be enough to find that parties “live together”.”  For instance, living in a cottage or holiday home for only parts of the year, may still be enough to support a finding of “cohabitation”. It is clear that the Court will take a contextual and flexible approach to determining whether a common law relationship is one that is conjugal.

It is noted that even if you meet the definition of “spouse” under the Family Law Act, it does not necessarily mean that you are automatically entitled to spousal support. It simply means that you have legal standing to make a claim for spousal support. A further legal analysis is then required to determine if you are entitled to spousal support, taking a look at, among other things, the means and needs of both parties. As with many family law cases, the individual facts of each case are important.

When considering your rights and obligations in family law, we recommend that you seek legal advice from a qualified family law lawyer.

1 Family Law Act, R.S.O. 1990, c. F.3, s. 30.

2 Family Law Act, R.S.O. 1990, c. F.3, s. 29.

3 Family Law Act, R.S.O. 1990, c. F.3, s. 1(1).

4 Molodowich v. Penttinen, 1980 CanLII 1537 (ON SC).

5 M. v. H., 1999 CanLII 686 (SCC), [1999] 2 SCR 3.

6 Climans v. Latner, 2019 ONSC 1311.

7 Climans v. Latner, 2020 ONCA 554.

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