Cohabitation Not Necessary for Spousal Support Entitlement

Written on behalf of Shariff & Associates

Spousal support is commonly awarded in the aftermath of a divorce, as well as in some cases when common-law couples decide to separate. Generally, to qualify as a common-law relationship, a couple must have cohabitated for a minimum of three years, or less if they share a child together.

Despite the assumption that a relationship in which a couple maintains separate residences would not result in the creation of legal obligations, this is not necessarily the case. The Ontario Court of Appeal confirmed this in a decision that made headlines for the generous spousal support award, especially because the couple in question had never lived together in the traditional sense. However, the court determined this was not necessary to deem them spouses under the provincial Family Law Act.

Cohabitation and Spousal Support, Generally

It is possible for spousal support to be imposed on those leaving a common-law relationship, particularly in situations where one spouse was financially dependent on the other during the relationship. In cases where the parties disagree on whether support is warranted, a court will consider several factors in making its determination, including:

The financial position of both parties;
The ability of each spouse to contribute to their own support now and in the future;
The age and health of both spouses;
The duration of the couple’s relationship;
The roles and functions of each spouse during the relationship and any effect this may have had on a spouse’s earning capacity; and
Any existing order or agreement with respect to spousal support for either spouse.

With respect to the last point above, if a couple had a cohabitation agreement or separation agreement in place which addressed the issue of spousal support, this will be given significant deference in most cases. It is possible for a couple to agree at the start of a relationship that in the event of a separation, neither spouse will become obligated to provide support for the other. Conversely, an agreement might also set out specific support expectations, including the amount and duration of payments. If such an agreement is in place, and it is legally valid, the court will generally impose the terms contained within the agreement.

Couple Deemed to be in Spousal Relationship for Support Purposes

In the case at hand, Climans v. Latner, the couple had been in a conjugal relationship for fourteen years. During that time, they each maintained separate residences but spent a significant amount of time together travelling. The man was quite wealthy and began providing an allowance to his partner soon after they began seeing one another, as well as paying for a number of her regular living expenses. This afforded her the freedom to not work throughout the course of their relationship. When they separated, the woman brought a claim for support against her former partner.

In the lower court decision, the court noted that while they each had their own home, they spent a considerable amount of time travelling and residing together each year. They often spent summers at the man’s cottage, and extended time each winter at his residence in Florida. In light of the part-time cohabitation as well as the woman’s financial reliance on the man for the majority of their relationship, the court ordered the man to pay $53,077.00 per month in spousal support.

The man appealed the decision, however, the Ontario Court of Appeal upheld the lower court decision, saying:

Lack of a shared residence is not determinative of the issue of cohabitation. As the trial judge’s review of the caselaw demonstrates, there are many cases in which courts have found cohabitation where the parties stayed together only intermittently… The trial judge correctly interpreted the legislation and articulated the governing legal principles in deciding whether the parties had been spouses. We have been pointed to no errors in her factual findings, much less ones that are palpable and overriding.

Decision Should be Considered as More and More Older Couples Opt to Retain Separate Residences

A recent article in the New York Times indicated that more and more often, people in both Canada and the U.S. who enter relationships later in life are choosing not to marry or cohabitate at all. For many, this is because they want to avoid becoming a caretaker or simply want to maintain a sense of independence. For others, they may be looking to avoid creating unnecessary legal obligations, especially if they have grown children from previous relationships to consider.

However, as the case discussed above demonstrates, the choice to maintain a separate residence is not necessarily a guarantee that a court won’t impose spousal support obligations in the event of a relationship breakdown. Any couple wishing to make their intentions clear from the start should speak with a family lawyer to draft and execute a domestic agreement to ensure there will be no unpleasant surprises in the future.

Contact the Family Lawyers at Shariff & Associates for Common-Law Separation

At Shariff & Associates, our family law lawyers regularly advise clients entering or leaving common-law relationships with respect to their rights. We will review your circumstances with you and ensure you have a full appreciation of your rights and obligations in the event of a separation. We will also work with you to create a comprehensive cohabitation agreement or separation agreement to protect your rights. To review your matter with a member of our team, please reach out to us online, or call us at 905-591-4545.