“Living Apart Together” (LAT) refers to an intimate relationship where the parties are committed to each other, but choose to maintain separate residences. LAT relationships are becoming increasingly popular in Canada – as noted in the Vanier Institute of the Family’s 2024 publication, Families Count, approximately one in 10 Canadians are in an intimate relationship but do not live with their partner, and the occurrence of such relationships has been steadily increasing for over a decade.
In challenging traditional assumptions around family structures, LAT relationships raise an important legal question: Can LAT partners be recognized as “spouses”? Canadian courts have answered this question in the affirmative in a number of cases.
Recognition of LAT “Spouses” by the Ontario Court of Appeal
In a landmark decision, the Ontario Court of Appeal affirmed in Climans v Latner, 2020 ONCA 554 that “[l]ack of a shared residence is not determinative of the issue of cohabitation” when assessing whether parties are spouses under the Family Law Act. Although the couple in Climans maintained separate residences, the court found sufficient evidence of cohabitation via regular overnight visits and shared vacations, plus other aspects of a committed partnership, to conclude that the couple were spouses and that the respondent on appeal was entitled to spousal support.
Northwest Territories Supreme Court Recognizes LAT Spouses After Death
The court’s reasoning in Climans has begun to have an impact in the context of wills and estates. Earlier this year in Estate of Bourque, 2025 NWTSC 70, the NWT Supreme Court held that a couple who had been in a LAT relationship for over 20 years were spouses, even though they had not lived together for a full two years. As such, the applicant was entitled to administer the deceased’s estate as his surviving spouse.
Drawing on jurisprudence from Ontario, including Climans, the court explained that whether partners have “lived together in a conjugal relationship” is to be interpreted as a “flexible, fact-driven concept. The existence of a conjugal relationship is not solely determined by whether the parties shared a single residence; rather, courts must assess the totality of the relationship”.
Circumstances that supported recognition of a spousal relationship in Bourque included the applicant and the deceased sharing a mailing address, plus joint finances and assets. They also travelled together and publicly held themselves out as each other’s spouses. The court also observed that their separate-home arrangement was driven by external circumstances, as the applicant was a caregiver to her grandchildren, and the deceased required a single-level home due to physical limitations.
Alberta Court of Appeal Confirms Flexible Approach to Cohabitation Requirement
Last month, in Somers Estate (Re), 2025 ABCA 372, the Alberta Court of Appeal also affirmed that a couple could be recognized as “adult interdependent partners” under the Adult Interdependent Relationships Act, even though each partner had their own residence. The applicant and her partner had been together for approximately nine years when the deceased passed away. Following his death, the applicant claimed support and maintenance from his estate, but the estate opposed her claim.
The evidence before the court established that the deceased’s home was intended to be their joint residence, and was within walking distance of the applicant’s home. However, the applicant continued to store a lot of her things at her own home, and did not always stay at the deceased’s home.
Notwithstanding that the Act expressly requires partners to “live with” each other, the Court of Appeal confirmed that continuous co-residence under one roof is not necessarily required, “taking into account the parties’ particular circumstances”. Quoting Wright v Lemoine, 2017 ABQB 395, the Court of Appeal affirmed that a flexible approach should be taken to the cohabitation requirement under the Act, “[g]iven the many ways parties may structure their living arrangements”. The Court also quoted the Supreme Court of Canada’s decision in Hodge v Canada (Minister of Human Resource Development), 2004 SCC 65:
“‘Cohabitation’ … is not synonymous with co-residence. Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof.”
What This Means for Estate Practitioners
As LAT relationships become more common, wills and estates practitioners ought to be aware that LAT partners may qualify for dependant support under the SLRA, depending on the circumstances. While it is not a foregone conclusion that a LAT partner will to be recognized as a spouse, a growing body of caselaw reflects that modern committed spousal relationships do not always involve a shared home. That said, to establish entitlement to dependant support, it is wise to provide some evidence of the couple living under the same roof in some way – for example, on vacations or weekends – in addition to other indicia of a spousal relationship.
Thank you for reading, and enjoy the rest of your week,
Suzana.