Can You Be Considered a Spouse Even If You Never Resided Together?
In Climans v Latner, the court was tasked with determining whether the applicant qualified as a spouse for the purposes of spousal support, even though the couple never shared a home together and never got married.
The parties were in a committed 14-year relationship. They regularly celebrated anniversaries, exchanged rings, and numerous love letters that expressed their commitment to one another. The respondent created a financial dependency on him by paying off the applicant’s mortgage and asking her to quit her job to be available to him. She ran errands for him and cooked meals for him. Even though she lived in her own home, she would often cook at her house and bring the food over.
This relationship was albeit unique, but the applicant was treated like family by members of the respondent’s extended family and they held themselves out as a couple. Additionally, they spent every summer living together at a cottage, took numerous vacations, and spent many months in Florida living together. And whenever the applicant’s children were with their father, she stayed at the respondent’s house. The main reason that the couple never cohabitated under the same roof and the applicant maintained her own home was to create stability for her children because their house was near their school.
The primary issue is whether the Applicant is a “spouse” for the purposes of Part III of the Family Law Act. If she is not a spouse, the case ends here. If she is a spouse, then the issue of spousal support needs to be determined.
Because the parties were never married, the Divorce Act does not apply. Instead, the court must turn to the definition of a spouse under section 29 of the Family Law Act. There, “spouse” 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 in a conjugal relationship
- In a relationship of some permanence if they share a child
The judge had no problem determining that they met the requirements of the length of the relationship and that it was conjugal. The one issue that needed further inquiry was whether the parties had a “shared shelter” and if not, was that fatal to the applicant’s spousal support claim.
The Supreme Court of Canada case called M v H considers whether maintaining separate residences eliminates a party’s ability to be considered a spouse. The case stands for the ruling that even when a couple maintains separate residences, it does not automatically prevent the finding of cohabitation. It then becomes a discretionary inquiry into many factors.
The definition of a spouse and whether cohabitation has been continuous is both a subjective and objective test. The court must look into all of the circumstances, such as the reasons for maintaining another residence, particularly if it is to facilitate access with one’s children. The court also found that continuous daily cohabitation is not a necessity for finding someone a spouse. Intention of the parties is extremely important.
Finally, the court stated that; where there is a long period of companionship and commitment and an acceptance by all who knew them as a couple, continuous cohabitation should be found. This led the court to conclude that the applicant and respondent in this case were in fact spouses.
The financial dependency the Respondent created for his wife became extremely relevant in determining the quantum and duration for spousal support. He was determined to have an annual income of over $5 million for the purposes of support. The court inquired into the applicant’s monthly expense report and determined that she was entitled to a payment of $53,077 per month from the applicant.
For the duration determination, the “rule of 65” became a major factor. Under the Spousal Support Advisory Guidelines, spousal support is payable for a duration of between 7-14 years, unless the years of their relationship and the applicant’s age total 65 or more (the Rule of 65).
The applicant was 51 years of age at separation. Based on the date their cohabitation commenced and their date of separation, the applicant claimed indefinite support. The court stated that because of the 5 month leeway with the rule of 65, she qualified for indefinite support. The ultimate finding of the court was that the applicant qualified as a spouse for the purposes of spousal support.