Being the spouse of another person has important legal implications in Ontario.  In a family law context, it affects property rights and the right to support.  Two people are spouses of one another if they are legally married, or if they live together in a common law relationship.  When it comes to support rights, whether for spousal support or dependant relief claims in estate litigation matters, support rights of spouses often are the same.  However, how do we know if two people are common law spouses of each other?

If you’re interested in medical benefits or tax benefits, then it may be that people living together in a marriage like relationship become spouses after a year.  To be spouses of each other who are entitled to spousal support, then a person is a spouse of another person if they have lived in a conjugal relationship continuously for at least three years, or if they have a child together and are in a relationship of some permanence.

A leading case that tries to explain the common law definition of spouses listed what are now called the Molodowich factors.  These include shelter arrangements, whether it was a sexual relationship, personal behaviour, domestic tasks, social relationships with friends and family, how they present themselves to society, economic factors and the involvement of children.  This case has been considered by other judges in almost 500 other cases – which means that this issue had to be litigated that many times to determine whether two people were spouses of each other.

In one recent case, Jackson v. Moore, the couple were in a relationship for between four and six years and had two children together.  However, after reviewing the Molodowich factors, the court determined that they were not spouses of each other.  In another recent case, Climans v. Latner, this couple were in a romantic relationship for almost 14 years, but they maintained separated residences for the entire relationship and had no children together, but the trial judge and the Court of Appeal determined that they were spouses of each other and therefore Ms. Claimants was entitled to receive spousal support.  The Court of Appeal decision is important because it confirms that the lack of a shared residence is not determinative of the issue of cohabitation and by extension an entitlement to spousal support.  It resulted in Mr. Latner paying hundreds of thousands toward Ms. Climans’ legal fees and tens of thousands in spousal support.

It can be very unclear whether two people are spouses of each other, but this determination can have significant legal implications to both people.  If you’re in or are at the end of a common law relationship then you should get legal advice to determine your rights, responsibilities, and risks.  

Written by David Harris-Lowe