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Toronto Common Law Spousal Support

Toronto Common Law Spousal Support disputes are tricky. A recent Ontario Court of Appeal decision made headlines in finding a spousal support obligation for a couple who had separate residences but regularly spent time together over a 14-year long relationship. Our medium to high net worth family lawyers provide sage family law advice across BC, and in Calgary, Winnipeg, and now Toronto. Peter Graburn of our Toronto office gets a lot of questions from persons wanting to know if they are living together in a Toronto conjugal relationship. Our spousal support lawyers handle high-stakes Canadian spousal support cases and we recently set a near-record spousal support award of $100,000 monthly. (YES MONTHLY!) If you are seeking a record spousal support award contact us.

Toronto Common Law Spousal Support 1 877 602 9900

Toronto Common Law Spousal Support decisions require an assessment of a number of factors and unlike when parties are married it is tough to find a bright-line rule. Taking action to record whether or not the parties are on the same page with respect to their relationship makes sense in helping develop a consensus on whether a couple is living together in a conjugal relationship that could result in a spousal support obligation. When parties maintain separate residences things can be even more muddied in deciding whether or not a couple is living together in a conjugal relationship.

Toronto Common Law Spousal Support can be a touchy subject in family law disputes. Recipients of spousal support sometimes feel they are not receiving enough; payors of spousal support sometimes feel they are paying too much. Whether in a married or “common-law” relationship, “spousal support” obligations may arise.  If couples are married, the relationship is pretty easy to establish.  Same for “common-law” couples who have generally lived together during their relationship.  But what about couples who have generally not lived together during their relationship and, upon separation, one of the parties seeks financial (ie. spousal) support?  Should ex-“common-law” partners who have generally not lived together be entitled to claim “spousal support”? Interesting question.

Ontario’s Family Law Act Common Law Spouses 1 877 602 9900

Ontario’s Family Law Act (s. 30) provides that “spouses” are entitled to receive financial support when in need.

Section 29 of the Act defines “spouse” (for the purposes of spousal support) as persons who are either married (or were married) to each other or who are not married to each other and have cohabited:

  • continuously for a period of not less than three years, or
  • in a relationship of some permanence (and have a child together).

Furthermore, Section 1(1) of the Act defines “cohabit” as:

“cohabit” means to live together in a conjugal (ie. romantic or marriage-like) relationship, whether within or outside of marriage.

It is generally accepted that a “conjugal relationship” can be more than just a sexual relationship – a couple can be deemed to be living in a conjugal relationship (even if they do not have a sexual relationship) if they share a home, finances, friends, and an emotional attachment, etc.. But do they also have to “live together” in the same house and if so, for how long? Obviously, whether you are in a common-law relationship or not is a key threshold before liability for Toronto Common Law Spousal Support will be payable.

living together in a conjugal relationship
Peter Graburn Toronto family lawyer at MacLean Law

Blockbuster New Case on Toronto Common Law Spousal Support 1 877 602 9900

That was the question recently faced by the Ontario Court of Appeal in the Toronto area case of Climans v. Latner (2020 ONCA 554.  In that case, a couple had a 14-year romantic relationship, were not married, had no children together (although each had children from previous relationships), and had no joint property or bank accounts. More specifically, the couple never lived in the same house together (keeping separate residences), but otherwise behaved as a couple both privately and publically, travelled extensively together, and spent a great deal of time together at the man’s family cottage in the summer and in Florida in the winter.

The man was a wealthy businessman; the woman gave up her career and regularly slept at the man’s house. The man gave the woman thousands of dollars each month, expensive gifts, a credit card, paid off her mortgage, and provided both her and her children with a “lavish lifestyle”. The man gave the woman a diamond ring and other jewelry, proposed several times (which she accepted) and they talked about living together.  Also, the man asked the woman to sign a domestic (ie. prenuptial) agreement several times – she refused.

When the couple broke up 2015, the woman brought an action for spousal support, claiming they were a common-law couple.  The man denied the claim, saying the woman was merely his girlfriend and travel companion, noting that they never actually (or only intermittently) lived together. He lost. 

The Court of Appeal (supporting the Trial Justice’s decision) found that theirs was a conjugal, “committed relationship” (para’s 30 – 31).  But did this amount to a “common law” relationship that warranted spousal support, especially as they had never actually “lived together”? – yes.

The Court of Appeal found (again supporting the Trial Justice’s rationale) that the couple were long-time spouses and that (despite maintaining separate residences) they lived under the same roof while at the man’s cottage and during winter vacations outside the country, holding that a couple could be cohabiting even if the parties lived together only intermittently. In supporting the Trial Justice’s decision, the Court (at para’s 32 – 34) stated:

At para. 121 of the Trial reasons, the trial judge said that the one issue that gave her pause was whether the parties had a “shared shelter”. She posed the question: had Ms. Climans and Mr. Latner “lived together”, even though they maintained separate residences in Toronto?

Separate Residences Is Not The End Of A Toronto Common Law Analysis

In answering this question, the trial judge canvassed case law which establishes that the fact the parties maintained separate residences was not the end of the inquiry. She observed that in Stephen v. Stawecki (2006) (cite omitted), this court declined to impose a bright-line rule requiring that two people must move in together to be considered as living together or cohabiting. She noted that, at para. 4 of Stephen v. Stawecki, this court said “[T]he specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting”.

At para. 128 of the Trial reasons, the trial judge stated:

To determine whether the parties lived together in a conjugal relationship, all the factors must be considered in conjunction with one another. However, there needs to be some element of living together under the same roof. The very definition of “cohabit” requires that the parties live together in a conjugal relationship. [Emphasis in original.]

The Court of Appeal ordered the man to pay the woman $53,077 per month for 10 years and $324,179 in court costs.

So, can unmarried (ie. common-law) Ontario couples who do not live together (or only live together intermittently) be entitled to spousal support upon the break down of their relationship? Yes, depending on all the other factors of their relationship.

The number of couples deciding to live together and have children without getting married has steadily increased over the past decades (some 21% of Canadians in 2016). So have the number of both married and “common law” couples who have decided not to live continuously or primarily together, sometimes know as “living apart together” (some 7% of Canadians in 2011).   Climans v. Latner is clearly a recognition of this trend.

Final Takeaway

So what is the “take-away” from this case? Get a Cohabitation Agreement! Many couples consider and enter into Prenuptial Agreements before getting married.  But romantic relationships can turn into common-law relationships over time, with both the division of property and financial support obligations associated with that legal relationship. Perhaps the situation in Climans v. Latner could have been clarified if the man had persisted with the domestic (either Cohabitation or Prenuptial) agreement that was presented before the relationship developed (or deteriorated) so far.