Modern families can take on all different forms, which is something the courts have continued to acknowledge. Despite progressive understandings of what constitutes a family, there are still certain situations that require a deeper look. This was the situation in a recent case heard by the Ontario Superior Court of Justice where the court was asked to determine if a couple were spouses, or merely friends who shared an intimate relationship. The question was critical in determining whether the man owed the woman spousal support.

A non-traditional relationship

The mother and the father were 24 and 30 years old at the time of the trial. They met in 2012 when they dated for a brief period of time. They reconnected in July 2014 and had a close relationship until 2018. During this time they had two children, born in 2015 and 2018.The couple did not ever live together, but the mother did live and pay rent in a property owned by the father from November 2015 until May 2018. Meanwhile, the father lived in a separate residence.

The children had been in de facto custody of the mother for their entire lives. The father had been paying periodic child support since April, but he did not pay spousal support. It was the mother’s position that she is also owed spousal support, a claim the father objects to.

Proving one is a spouse

The court stated that it was the mother’s onus to prove that she is a spouse within the definition set out in Part III of the Family Law Act (“FLA”), which states,

“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,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.

The act defines “cohabit” as meaning “to live together in a conjugal relationship, whether within or outside marriage.”

The mother contends that their relationship satisfied a relationship as described in subparagraph “b” of the FLA. While the father accepts that the two were sexually intimate, he added that they did not “live together in a conjugal relationship.” Instead, he described their relationship as “friends with benefits.”

The court listed an extensive list of factors that the Supreme Court of Canada has listed when considering whether a conjugal relationship exists. The non-exhaustive list includes:

1. Shelter:

 a.      Did the parties live under the same roof?

 b.      What were the sleeping arrangements?

 c.      Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour:

 a.      Did the parties have sexual relations? If not, why not?

 b.      Did they maintain an attitude of fidelity to each other?

 c.        What were their feelings toward each other?

 d.      Did they communicate on a personal level?

 e.        Did they eat their meals together?

 f.        What, if anything, did they do to assist each other with problems or during illness?

 g.        Did they buy gifts for each other on special occasions?

3. Services:

What was the conduct and habit of the parties in relation to:

 a.      Preparation of meals,

 b.      Washing and mending clothes,

 c.        Shopping,

 d.      Household maintenance, and

 e.        Any other domestic services?

4. Social:

 a.      Did they participate together or separately in neighbourhood and community activities?

 b.      What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

5. Societal:

What was the attitude and conduct of the community towards each of them and as a couple?

6. Support (Economic):

 a.      What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

 b.      What were the arrangements concerning the acquisition and ownership of property?

 c.        Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

7. Children:

What was the attitude and conduct of the parties concerning children?

The court noted that these factors must be considered together and that none of them are individually conclusive of the issue.

After reviewing the facts as they applied in this case, the court found that the couple did not ever live under the same roof. While they were intimate, the father did not ever stay over at the mother’s apartment. Their visits mainly related to the children, and only for a few hours each week. They did not act like a family, and in fact, the father was in a committed relationship with someone else.

Contact NULaw as soon as possible if you are contemplating a separation, or have already begun the process. We are dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.

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