Relationships come in all different shapes and sizes, but when it comes to claiming spousal support, not every type of relationship will qualify as serious enough to warrant payment. This was something an Ontario mother discovered after recently trying to secure spousal support in a decision from the Ontario Superior Court of Justice.

The relationship and children

The mother and father are six years apart in age. They dated briefly in 2012 when the mother was still in high school but got back together in 2014 and maintained a relationship through to May 2018. The mother became pregnant with their first child shortly after they got back together, and they had another child in 2018.

The children have lived with the mother their entire lives, and the father pays child support, though the mother raised questions about whether he is intentionally underemployed. However, the more interesting question that arose during the trial was whether the mother was entitled to spousal support. To answer this question, the court had to determine whether she fit the definition of “spouse” within the Family Law Act (“FLA”).

What does it take to be a spouse?

The mother and father did not ever live together. However, the mother did live in a rental property owned by the father from November 2015 until May 2018. The did, however, continue to have an intimate relationship during this time. A typical routine would see the father arriving at the mother’s apartment at around 5:00pm. He would spend a couple of hours with their child, and when the child went to bed the parents would spend time together.

The mother took the position that she fit the definition of spouse under the FLA. The relevant section of the act reads,

“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 mother claimed their relationship fit the second of the two subparagraphs. The father, however, described the relationship as one of “friends with benefits.”

In coming to its decision, the court looked at a number of factors to be considered. They are listed as follows:

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?

After reviewing the factors, the court determined that the relationship did not fit that of spouses. The father maintained his own home, didn’t keep any of his belongings at the mother’s apartment, and had relationships with other women. As a result, the mother was denied spousal support.

If you have questions around spousal support or other related matters, contact NULAW as soon as possible. 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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