Last May, we wrote about a case, Mitchell v. Reykdal, in which a married Edmonton man had begun an extra-marital affair with a woman, commencing a 17-year relationship with her, while maintaining his marriage to his wife. He maintained separate households which, for the bulk of the time, were less than five kilometres from one another. When the affair ended, the woman brought a claim against the man for spousal support under the Adult Interdependent Relationships Act. Despite a clause in the Act which stated that a person could not be considered to be in an adult interdependent relationship while also living with a spouse to whom they were married, the court awarded support. The man appealed the decision.

Just recently, the Court of Appeal released its decision overturning the lower court order, finding that the judge had made a “palpable and overriding error” in her reasoning and interpretation of the applicable clause of the Act. Below, we will discuss the reasoning behind the Appeal Court’s reversal of the lower-court decision as it relates to the interpretation of the wording in the Act.

Entitlement to Spousal Support under the Adult Interdependent Relationships Act, and the Impact of s. 5(2)

In Alberta, common-law spouses, referred to as adult interdependent partners, are entitled to spousal support under certain circumstances. To qualify as an adult interdependent partner, the relationship must meet one of the following criteria:

  • The spouses have lived together in an interdependent relationship continuously for no less than three years;
  • The spouses have lived together in an interdependent relationship of some permanence if they share a child by birth or adoption;
  • The spouses have entered into an adult interdependent partner agreement under s. 7 of the Act.

If one of the above criteria can be established, a person may be able to bring a successful claim for spousal support upon a relationship breakdown. However, the ability to claim support is impacted by the operation of s. 5 of the Act, which states:

  1. A person cannot have more than one adult interdependent partner at one time, and;
  2. A married person cannot become an adult interdependent partner while living with their spouse.

S. 5(2) became the focus of the case at hand at both levels of court, given that the man in the relationship was married and continued to live with his wife and children throughout his affair, albeit somewhat sporadically.

Brief Factual Background of Mitchell v. Reykdal

The respondent, Gwen Mitchell, met the appellant, David Reykdal, in 1999. At the time, David had been married to his wife, Diane Reykdal, for nearly 12 years, and they had three children together. Soon after beginning their relationship, Gwen relocated with her daughter from a previous relationship to Red Deer to live in a home David had rented for them. David and Gwen shared several homes over the next 17 years, and Gwen’s daughter came to think of David as her father.

David’s career in the oil industry enabled him to be away from his home with Diane often, and he commonly spent the bulk of his time living with Gwen and her daughter, returning to his home with Diane every other weekend. Throughout the relationship, Gwen was aware that David was married, but had been given the impression that David and Diane were separated. David provided significant financial support to Gwen and her daughter throughout the relationship, allowing Gwen to remain a full-time homemaker. When their relationship ended in 2017, Gwen brought a claim against David for spousal support under the Adult Interdependent Partners Act. This alerted David’s wife to the affair, and she subsequently filed for divorce.

Alberta Court of Queen’s Bench rules Unmarried Partner is Entitled to Support Despite s. 5(2) of the Adult Interdependent Partners Act

The trial judge had no trouble establishing that Gwen qualified as an adult interdependent partner under the criteria set out in the Act. When determining whether s. 5(2) prohibited the court from awarding support in light of David’s ongoing marriage, the judge undertook an exercise in determining who David had in fact “lived with” during the course of his relationship with Gwen.

While David had maintained his home with Diane and their children throughout the affair, he spent the bulk of his time living with Gwen and her daughter. He demonstrated an emotional and financial commitment to Gwen throughout their relationship. Further, Gwen believed he was separated and viewed herself as his common-law spouse, rather than his mistress. Given those facts, the trial judge determined that, on the evidence, David had stopped living with his wife once he began spending the majority of his time residing with Gwen. Therefore, the existence of s. 5(2) did not preclude Gwen from collecting support.

Court of Appeal applies a Strict Interpretation of s. 5(2) and determines Unmarried Partner is not Entitled to Support

While the Court of Appeal agreed with the trial judge that Gwen qualified as an adult interdependent partner under the Act, it found that the lower court judge had made a palpable error in determining that Gwen was entitled to support in spite of s. 5(2). The Appeals Court held that if it could be established that David was married and living with his spouse, there was no basis for examining who David had lived with ‘more’. Once the factors in s. 5(2) have been established, nuance should not play into the application of the section, otherwise, the section might never be applied. The Court concluded its reasons by stating:

The appellant had interdependent relationships with two women at the same time. Section 5(2) provides that in such a situation, in law no adult interdependent relationship with GM could exist. This is exactly the kind of situation s 5(2) was designed to address.

While the Court acknowledged that it had sympathy for Gwen’s situation given David’s deception, the language of the statute was clear and unambiguous.

Mincher Koeman Family Lawyers for Comprehensive Spousal Support Guidance in Calgary

At Mincher Koeman, our family lawyers have considerable experience in assisting clients with negotiating and securing spousal support orders. We are highly knowledgeable on all factors relating to support awards, including the federal Spousal Support Advisory Guidelines, we are skilled at identifying and locating hidden assets, and we always attempt to resolve spousal support matters in the most efficient way possible. If you are in need of legal advice with respect to spousal support, please contact our office to make an appointment to discuss your matter with one of our lawyers by calling us at 403-910-3000 or by contacting us online.

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