Common-Law Spouses – Just what does it mean to “cohabit”?

January 31, 2013 Hull & Hull LLP Common Law Spouses Tags: 0 Comments

In my blog earlier this week I discussed how in Ontario the Succession Law Reform Act (“SLRA”) extends to common-law spouses the ability to seek dependant’s support. As stated in my blog, the definition of spouse in Part V of the SLRA includes two people who are not married to each other but who have “cohabited continuously for a period of not less than three years”.

Looking to this definition, the obvious next question is just what does it mean to “cohabit”? In Part V of the SLRA, to “cohabit” is defined as “to live together in a conjugal relationship”.

A simple reading of this provision leads you to one conclusion. You must live together to be considered common-law spouses. But is this necessarily the case? There are multiple varieties of relationships today. If two people do not live together, but otherwise present themselves to the world as spouses, does this preclude them from ever being defined as a “spouse” within the SLRA?

In Molodowich v. Penttinen, [1980] O.J. No. 1904, the court provided for seven broad factors to be considered when determining whether a couple “lives together in a conjugal relationship”. The test employed in Molodowich was later confirmed by the SCC in M. v. H.  As made clear in Molodowich, so long as a couple meets enough of the criteria listed, they are to be considered “living together in a conjugal relationship”, and thus may qualify as “spouses”.

This more flexible approach is perhaps best phrased by the Ontario Court of Appeal in Stephen v. Stawecki, where at paragraph 4 they provide:

The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible… We agree with the respondent that the jurisprudence interprets ‘live together in a conjugal relationship’ as a unitary concept, and that specific arrangements made for shelter are probably treated as only one of several factors in assessing whether 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.”

Looking to the language contained in Stephen v. Stawecki, as well as the factors delineated in Molodowich, it is arguable that common-law spouses need not live under the same roof to be considered “spouses” within Part V of the SLRA. So long as they meet enough of the criteria listed in Molodowich, they may be considered living together in a conjugal relationship.

Thank you for reading.

Stuart Clark 

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