In a recent decision, an Ontario court found that a woman was entitled to indefinite spousal support from her partner even though they had maintained separate residences.

The Parties’ Story

The parties began their relationship in October 2001 and separated in May 2015. Both parties had children from their previous marriages, but they had no children together.

Following the end of their relationship, the woman was on track to earn $24,000 per year as a yoga instructor. The man had significant means and wealth when the parties met, and his income for the last three years averaged approximately $6.5 million per year.

Upon separation, the woman sought spousal support from the man. A trial was held to determine whether or not the woman was a “spouse” for the purposes of Part III of the Family Law Act, and if so, how much spousal support the man would be obligated to pay her.

The Parties’ Positions

The woman maintained that she was a “spouse” and that the man treated her as a wife. Among other things, she provided evidence that she received an engagement ring, wedding band and eternity band from the man during their relationship, and that the man was listed as her “husband” on her passport.

The man indicated that the woman was simply his travel companion and girlfriend, nothing more. He maintained that he never lived with the woman and that they therefore were not spouses.

Section III of the Family Law Act (the Act) states that a “spouse” means a spouse as defined in section 1(1), and in addition includes either of two persons who are not married to each other and have cohabited continuously for a period of at least three years. Section 1(1) of the Act defines “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage.”

In determining whether or not a conjugal relationship exists, the court will consider various elements, including shared shelter, sexual and personal behaviour, services, social activities, economic support, children, as well as the societal perception of the couple.

Furthermore, in 2003, the court found that maintaining separate residences does not prevent the finding of cohabitation. Rather, all of the circumstances must be examined, including the reasons the couple maintained another residence.

Similarly, in 2006, the court of appeal stated that it would not impose a “bright-line rule” (i.e., that parties do not have to move in together to be considered to “live together” or “cohabit”).

That said, there does need to be some element of living together under the same roof for a court to find that a couple had cohabited.

The Court’s Decision

The court determined that the parties in this case were “spouses” within the meaning of the Act. The court found it was clear that the parties’ relationship lasted for more than three years, and that their relationship was a conjugal relationship. Among other things, the court noted that:

  • The parties were in a committed relationship for 14 years (for example, they exchanged rings, celebrated their anniversary every year, and exchanged letters with expressions of deep commitment).
  • The man paid for the woman’s expenses for the entirety of the relationship, provided her with a lavish lifestyle, paid off one of her mortgages and created a financial dependency.
  • The man’s extended family treated the woman as family. The parties also held themselves out as a couple to their family and friends, and referred to each other as spouses in public.
  • Every summer, the parties moved up to and lived together at a cottage.
  • For the first several years of the relationship, the woman resided at the man’s home on a regular basis, when her children were not in her care.
  • The parties lived together as spouses when in Florida.

The court found that the woman was entitled to non-compensatory support (based on the difference between the needs and means of the parties), as well as compensatory support (based on the economic loss or disadvantage the woman suffered as a result of the role she played during the parties’ relationship). The court ordered the man to pay the woman spousal support in the amount of $53,077 per month on an indefinite basis.

Lessons Learned

It is possible that you have a responsibility to pay, or are entitled to receive, spousal support even if you and your partner maintained separate residences throughout your relationship. Contact Gelman & Associates if you are involved in a separation or divorce and have questions about your rights. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to schedule an initial consultation.