When you hear the word “spouse”, you might think of a married couple or at least a couple who lives together. But what if none of those factors exist? In a recent decision, some may find surprising, the Ontario Court of Appeal has ruled a couple to be spouses of one another, despite the fact that they were never married, and did not share a home or kids. Why make the ruling, if there are no property or parenting issues to determine? To impose spousal support obligations on one of the parties.

Those in similar relationships may wonder how this decision could affect them if their relationship was to break down, so we will explain the reasoning behind the decision below, as well as discuss options for how couples can set their own terms around support, regardless of the type of relationship they have.

Redefining Our Understanding of “Cohabitation”

The word “cohabitation” is generally understood to mean “living together”, as in sharing a residence. In fact, the dictionary definition of ‘cohabit’ is as follows:

– to live together as if married, usually without legal or religious sanction.

– to live together in an intimate relationship.

However, the court in this case stated that:

Lack of a shared residence is not determinative of the issue of cohabitation…There are many cases in which courts have found cohabitation where the parties stayed together only intermittently.

In the case at hand, the couple, LC and ML, had met and begun dating in 2001. Though they never owned property together and maintained separate residences throughout the relationship, there were a number of factors the court found indicated a cohabitation relationship:

  • They behaved as a couple publicly and privately
  • They vacationed together
  • ML had gifted LC with expensive jewelry
  • LC quit her job and would sometimes stay at ML’s house
  • They spent portions of each summer together at ML’s cottage, and winters in Florida
  • They discussed moving in together, and ML proposed to LC several times
  • LC accepted the proposal, however, ML requested she sign a marriage contract, and she refused
  • ML gave LC a significant amount of money each month, as well as a credit card
  • ML paid off LC’s mortgage and provided her and her children with a lavish lifestyle

When the relationship broke down after 14 years, LC requested the court find her to be ML’s spouse for the purposes of awarding spousal support. ML insisted that LC had been his girlfriend and travel companion, but rejected the idea the two had been spouses.

The Superior Court judge found that ML and LC spent enough time together to warrant defining the relationship as a spousal one. As a result, she ordered that ML pay LC support in the amount of $53,077 per month, indefinitely.

Intermittent Cohabitation Can Warrant a Finding of a Spousal Relationship

ML appealed the lower court decision, however, the Court of Appeal largely agreed with the Superior Court’s findings. The ONCA agreed that cohabitation can exist even if a couple only shares a residence on occasion, but it disagreed with when the cohabitation began, which was determinative of the length of time ML would be required to pay support. This is known as the ‘Rule of 65‘, which states that if the length of the relationship plus the support recipient’s age exceeds 65, indefinite support is an appropriate award.

The lower court held that the couple had begun cohabitating right away, whereas the ONCA found that the first stay at ML’s cottage was in 2002, therefore just missing the qualification period for the Rule. As a result, the ONCA maintained the amount of the support payments but set the obligation at 10 years rather than indefinitely.

Setting the Terms of a Relationship Through a Cohabitation Agreement

Support obligations can be ever-changing depending on family circumstances, and as this case demonstrates, the obligation to pay can take the parties by surprise. In order to be sure of your rights and obligations regarding support in the event your relationship breaks down, the best option is to set the terms out clearly in a valid cohabitation or marriage contract. This will ensure both parties are fully aware of how they will manage a potential breakup from a financial standpoint, and help to avoid costly litigation down the road.

If you would like to discuss your options with respect to creating a family law contract or if you are unsure of your rights and responsibilities regarding support, the family lawyers at Mincher Koeman can provide necessary guidance. Our exclusive focus on family law helps our clients navigate the emotional and financial challenges a family law matter can present. If you have a family law issue that you need assistance with, please contact us online or phone at (403) 901-3000 to talk with one of our lawyers today.

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