In order to qualify as a spouse, one must first establish cohabitation with their partner in question.

This is accomplished by running through the criteria set out in Molodowich v. Penttinen, 1980 CanLII 1537 (ON SC), which provides generally acceptable characteristics to be met for parties to be deemed to be living together in a conjugal relationship. The Supreme Court of Canada adopted this criteria in M. v. H., 1999 CanLII 686 (SCC), [1999] 2 SCR 3, and confirmed that the elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.

In the decision we are going to focus on today, Climans v. Latner, 2019 ONSC 1311 (CanLII), Ms. Climans and Mr. Latner had been in a romantic relationship for 14 years. For the duration of their relationship, they maintained separate residences. Ms. Climans did live at Mr. Latner’s cottage every summer for the months of July and August, she spent weekends at his place in Florida, she vacationed with him, and she resided at his residence on alternate weekends when her children from her pervious marriage were with their father. Their relationship was public knowledge and their shared closely interwoven personal lives. While Mr. Latner supported Ms. Climans financially, they maintained separate bank accounts, had no joint accounts, nor owned any property together.

When applying the relevant legislation to the case at hand, the court looked to section 29 of the Family Law Act, which provides that a “spouse” “means a spouse as defined in subsection 1(1) and, in addition, includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years.” Subsection 1(1) of the Family Law Act defines “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage”.

The court recognized that cohabitation requires not only that the parties had a conjugal relationship but also that they lived together, stating that the Molodowich factors must all be considered in conjunction with each other when assessing whether the parties cohabited. It was stressed that “there needs to be some element of living together under the same roof.” The court observed that the intermittent periods during which the parties shared a roof, such as Ms. Climans living at Mr. Latner’s cottage every summer, her spending time at his place in Florida, vacationing with him, and residing at his residence on alternate weekends, could constitute living together in a conjugal relationship. Therefore, the court concluded that maintaining two sperate residences was not fatal and they were deemed to be living together in a conjugal relationship.

The Court of Appeal upheld this portion of the decision and therefore confirmed that the lack of a shared residence is not determinative of the issue of cohabitation.

In reaching its decision, both the Superior Court of Justice and the Ontario Court of Appeal relied in part on Stephen v. Stawecki, 2006 CanLII 20225 (ON CA), where it was held that “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.”

For these types of cases, it is clear that each outcome will be fact specific, and the Judge will have substantial discretion in how they view and apply the facts of the case at hand.

This decision opens the door to dependant support claims by partners who do not cohabitate in a shared primary residence but maintain a long-term relationship that satisfies the court with regards to the couple being a conjugal relationship. These claims could also be pursued in estate matters, as a deceased’s partner could bring a dependant support claim against an estate, even if they had both maintained separate residences throughout their relationship.

Thanks for reading and have a great day!

Ian and Geoffery Sculthorpe