Family law lawyers know that the many members of the general public believe that they can become spouses and then entitled to all the same rights as married spouses if they live together long enough. That is not the case when it comes to property rights. Unless you are married, you do not get to automatically share the wealth accumulated during the time you lived together if your relationship breaks down.

However, you are perhaps entitled to support should your relationship fail if you fit within the definition of “spouse” set out in the The Family Law Act.

Under that legislation, you become a spouse for support purposes if you are “either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years”. Cohabit means to live together in a “conjugal relationship”, whether within or outside marriage.

This definition was put to the test in a recent case in the Ontario Court of Appeal. (Climans v Latner, 2020 ONCA 554). In that case, Lisa and Michael were in a romantic relationship from October 2001 to May 2015, a period of almost 14 years. Throughout the relationship, they maintained separate homes where they both lived. They never married or moved in together. They both had children from previous relationships. Michael told Lisa that he would not marry her or live with her unless she first signed a domestic contract. Several contracts were prepared and presented but no contract was ever signed. Michael was wealthy and presumably he wanted to protect his wealth by such an agreement.

They did live together in July and August at Michael’s Muskoka cottage. They spent weekends in Florida in the winter months. Sometimes they spent the March break there. They vacationed together. Key to the court’s decision was the fact that Michael supported Lisa financially. He provided her and her children with a lavish lifestyle. Their personal and social lives were closely interwoven and they presented as a couple in public.

When they separated, Lisa brought an action requesting that she be recognized as Michael’s spouse and that he be required to pay her spousal support. Michael argued that she was not entitled to spousal support as she did not fit within the definition spouse as noted above primarily because they never actually lived together under the same roof. After an eight day trial, the trial court found that the parties did fit within the definition of spouses. Michael was ordered to pay $53,077 per month for an indefinite duration.

The appeal court found that the support should not have been ordered an indefinite duration and changed that to ten years of payments. The Court also modified the amount of costs which were awarded at the trial.

However, the key element of the decision was the confirmation of the trial court’s decision that the parties were spouses. The court cited many examples of how the couple were committed to each other. Lisa was sleeping at Michael’s home on weekends when her children were with their father. She quit her job so she could run errands for him, travel with him and spend time with him. Michael gave her a diamond ring proposed to her on several occasions. She accepted but they never married. They celebrated the anniversary of the day they met and while Michael was in hospital dealing with the health issue, Lisa slept at the hospital occasionally alternating with his children. She drove him to his follow-up medical appointments. They were sexually active throughout their relationship. They introduced each other to their children early on and although there was no melding of their children into one family, they did celebrate special occasions together. They attended family functions together and held themselves out as a couple. The relationship changed to some extent in 2006 when Lisa began sleeping very infrequently at Michael’s home. That was the only change in the relationship.

They never merged their finances or maintained joint bank accounts. They owned no property together. However, Michael did give Lisa $5000 per month later increasing to $6000 per month. He also started covering her home expenses and gave her the use of a credit card for other expenses. He paid off the mortgage on her home and paid for renovations. He gave her expensive gifts.

In upholding the trial judge’s decision, the Court of Appeal noted specifically that that Lisa and Michael did not have to live together under the same roof to become spouses within the definition of the legislation. Living in different homes is just one factor for the court to consider. The court found that all of the other factors cited by the trial judge led to the inevitable conclusion that the parties were spouses and the time they spent together under one roof although, not continuous, constituted living together.

So in answer to the question, yes you can become a spouse even if you do not live under the same roof during the time you are together. The lesson to be learned is that, if you want to have a relationship without getting married, it is probably best to have a written agreement in place which spells out your rights and obligations if your relationship happens to fail. Do not forget as well that a claim can be made against you or your partner’s estate if you or your partner should die while you are living together so long as you become a “spouse” within the above definition. This is another good reason to have an agreement. In other words, the decision to have a close connected relationship with another individual is becoming as important as the decision to marry that person.

Tom Dart, Partner