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So I received an e-mail today from someone who asked: “When do cohabiting couples become common law spouses with support obligations under the Ontario Family Law Act?” It was a very good question. You see, if you have a Cohabitation Agreement that avoids creating financial obligations, then you don’t have to worry too much about the consequences of being in a common law relationship and finding yourself subject to paying SUPPORT to the other spouse. The reason being that this Cohabitation Agreement can actually allow the parties to avoid any support obligation entirely! The spouses essentially waive their right to claim support under the Family Law Act, the Succession Law Reform Act, others statute, the common law, or equitable grounds.
But what if you don’t have a Cohabitation Agreement? Well, then you’re subject to what the Family Law Act says with respect to support obligations! So what does it say? Well, Part III (“Support Obligations“) of the Act says that every SPOUSE has an obligation to provide for himself / herself AND for the other SPOUSE in accordance with the need, to the extent that he or she is capable of doing so (section 30). Indeed, a spouse has the right to apply to the court for an order for spousal support (section 33(1)).
So who counts as a “spouse”? Well, turning to section 29, “spouse” is defined to include married couples but also “either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years”. WOW! So if you cohabit continuously with another person for 3 years, you become their spouse for the purposes of spousal support under the Ontario Family Law Act. But the Act goes on to say that a “spouse” also includes “either of two persons who are not married to each other and have cohabited “in a relationship of some permanence, if they are the natural or adoptive parents of a child”. OK, so this second definition of “spouse” seems to be a bit more relaxed than the first, but there’s a child involved.
Now, going back to the first definition – “cohabit continuously with another person for 3 years” – the question which then needs to be answered: what does “cohabit continuously” mean? Do they have to be living under the same roof every day for 3 years? What factors are relevant? What have the courts said?
Well, in the recent case of Sternat v. Hell,  O.J. No. 1620, the Ontario Superior Court of Justice was dealing with a motion for temporary spousal support in respect of a non-married couple. The couple never married and had no children. The woman claimed that she was a common law spouse and entitled to temporary spousal support under the Act. The man denied that they were spouses as they lived apart EACH WINTER! Hmmm…so what did the court say about this? Well, the Court turned to the frequently quoted authority on the issue of “conjugal relationship” – the Ontario District Court’s decision in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (which had been cited with approval by the Supreme Court in M v. H. (1999) 2 S.C.R. 3). In Molodowich, the Court outlined 7 factors which helped determine whether a conjugal relationship existed. Those factors were:
- Shared Shelter: did the parties live under the same roof? what were the sleeping arrangements? Did anyone else occupy or share the available accommodation?
- Sexual and Personal Behaviour: did the parties have sex? If not, why not? Did they maintain an attitude of fidelity to each other? What were their feelings towards each other? Did they communicate on a personal level? Did they eat their meals together? What if anything did they do to assist each other with problems or during illness? Did they buy gifts for each other on special occasions?
- Services: what was the conduct and habit of the parties in relation to preparing meals, washing and mending clothes, shopping, household maintenance, and any other domestic services?
- Social: did the couple participate together or separately in neighbourhood and community activities? What was their relationship and conduct towards members of their respective families and how did the families behave towards the parties?
- Societal Perception of the Couple: what was the attitude and conduct of the community towards each of them and as a couple?
- Economic Support: what were the financial arrangements between the parties regarding the provision or contribution of necessities of life (e.g. food, shelter, recreation, etc.)? What were the arrangements concerning the acquisition and ownership of property? Was there any special financial arrangement between them which both agreed would be detrimental of their overall relationship?
- Children: were there any?
The Court in Sternat acknowledged that these factors were to be used flexibly with an objective view (such that it could respond to a variety of relationships that existed in Canada’s diverse society). Relying on these factors, the Court found that the woman and man were common law spouses. The Court came to that conclusion, in part, based on the fact that:
- the couple spent 7 months a year together in the same residence for the past 5 years;
- the couple were sexually active;
- the man provided the woman with a significant level of financial support after they separated;
- the couple participated together in community activities (however infrequent); and
- the woman gave up financial independence and became financially dependent on the man.
As a result, the common law husband had to pay $2,000 per month in temporary spousal support to his common law wife based on his ability to pay. WOW!
Remember: you can try to avoid the Family Law Act and a judge from determining whether you owe support to a person you are cohabiting with by entering into a COHABITATION AGREEMENT! If you need a lawyer to help prepare or review one of these agreements for you, make a post!