Cohabitation and Marriage
While not all married spouse cohabit, most do. How does the law view the distinction when considering remedies on the death of a spouse?
Under the Family Law Act, section 5(6) speaks to the circumstances under which the Court may exercise its discretion to determine that an equalization of net family property would be unconscionable. One of the criteria is set out in s. 5(6)(e): “the fact that the amount a spouse would otherwise receive…is disproportionately large in relation to a period of cohabitation that is less than five years.”
Under the Succession Law Reform Act, section 62(1)(g), a determination of the quantum of support that a dependant spouse is entitled to will vary depending on “the proximity and duration of the dependant’s relationship with the deceased.” And s.62(1)(r): “if the dependant is a spouse, (ii) the length of time the spouses cohabited.”
As is always the case, the specific facts of a case are relevant to the application of the law. In Mokhorya v. Mokhoria, 2010 ONSC 893,  O.J. No. 1024, the parties were married five-and-a-half years, from the date of their marriage in Russia, to the date of separation. Although they did not cohabit until the wife immigrated to Canada a year after the marriage, the only thing that kept them apart was her immigration status. Therefore, the court determined that s.5(6)(e) had no application to the case. Even if the marriage were four-and-a-half years, as the husband contended, the court could not conclude that an equalization of net family properties would be unconscionable on the facts.
The bottom line is that cohabitation matters and will have a bearing in many cases (with notable exceptions such as Mokhorya) on the statutory remedies available to a surviving spouse.
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