Although such a commonly used phrase in today’s society, the type of relationship that amounts to a spousal relationship according to the law is an area that is often litigated over in Court.
Section 57 of the Succession Law Reform Act (“SLRA”) defines spouse as: “a spouse as defined in subsection 1(1) [of the SLRA] and in addition includes either of two persons who, (a) were married to each other by a marriage that was terminated or declared a nullity, or (b) are not married to each other and have cohabited, (i) continuously for a period of not less than three years, or, (ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.”
After reading the definition of spouse, a logical question that arises is the meaning of “cohabitated”. Section 57 of the SLRA accounts for this by defining “cohabit” as, “…to live together in a conjugal relationship, whether within or outside marriage”. Unfortunately, the SLRA offers no further definition of what it means to live in a conjugal relationship. Therefore, attention must turn to the common law.
The case of Molodowich v. Penttinen 1980 CanLII 1537 (ON SC), a decision by District Court Judge S.R. Kurisko out of Thunder Bay,is the leading decision when it comes to defining, “…to live together in a conjugal relationship”. Molodowich defined seven broad factors to consider in assessing whether two persons have lived together in a conjugal relationship. These factors include:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
2. Sexual and Personal Behaviour
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
3. Services (What was the conduct and habit of the parties in relation to)
(a) Preparation of meals;
(b) Washing and mending clothes;
(d) Household maintenance; and
(e) Any other domestic services.
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?
(a) What was the attitude and conduct of the community toward each of them and as a couple?
6. Support (economic)
(a) What were the financial arrangements between the parties regarding provision of or contribution toward the necessities of life? (food, clothing, shelter, recreation, etc.)
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(a) What was the attitude and conduct of the parties concerning children?
The seven factors approach from Molodowich was confirmed and adopted by the Supreme Court of Canada in M. v. H  2 S.C.R. 3. In M. v. H, the SCC stated that in looking to these factors to determine if there was a “conjugal” relationship, the parties do not have to meet all of the criteria listed, and that the factors may be present in varying degrees and that not all are necessary for the relationship to be found. In order to come within the definition, couples are not required to fit precisely the traditional marital model.