Living Together & the SLRA
In last week’s blog, found here, I talked about interpretation issues surrounding section 57 of the Succession Law Reform Act ("SLRA"). Fortunately, the SLRA provides the definition of ‘spouse’ and ‘cohabitated’. According to the SLRA, ‘cohabitated’ is defined as, “…to live together in a conjugal relationship, whether within or outside marriage” [emphasis added]. As the SLRA fails to define what it means to live in a conjugal relationship, it was necessary to turn to the common law for our answers.
The common law has also provided interpretive assistance in defining ‘to live together’. Specifically, the courts have addressed whether a couple can still live together but not under the same roof.
The leading case to address whether ‘cohabitation’ requires two people living under the same roof is Stephen v. Stawecki, a 2006 case of the Ontario Court of Appeal. In Stawecki, the court had to deal with a couple which began their relationship in March 1999. By December 1999, even though they maintained separate residences, the couple spent most nights together, and lived their lives together for the most part as a couple. In May 2003 one of the parties died, and the other party subsequently applied for dependant’s support. In the course of the application, the issue of whether the couple were “spouses” was raised, for although the couple moved in together in April 2001, in order to be cohabitating for the required three years the couple would have had to move in together before May 6, 2000. The appellant argued that as the couple did not live under the same roof for three years, they could not meet the definition of “spouse” within the SLRA. The Court of Appeal disagreed.
In determining if the couple lived in a spousal relationship, the Court looked to the factors from Molodowich v. Penttinen, which I listed in my previous blog. Upon reviewing the facts in the case, the Court of Appeal stated at paragraph 3, “[t]he necessary intent to cohabit in a conjugal relationship was formed by the parties before May 6, 2000 although perhaps it was not documented until later. Their relationship was an exclusive one, neither party being unfaithful. They slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple, and were treated as such by their friends, family, and neighbours.”
The court went on to state at paragraph 4, “[t]he case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible. In our view, to accept the appellant’s argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H. in this area. We agree with the respondent that the jurisprudence interprets ‘live together in a conjugal relationship’ as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship”.
This reasoning was later supported in the 2008 Court of Queen’s Bench of Manitoba decision of Bullied v. Kallen, where at paragraph 7, Menzies J., states “[a]lthough sharing a common habitual residence is a factor the court will consider, whether or not the parties share a common residence is not determinative”.