Cohabitation found to exist in many cases even when partners stayed together intermittently
The Ontario Court of Appeal has upheld a finding of cohabitation and ordered spousal support despite the former partners maintaining different residences.
In Climans v. Latner, 2020 ONCA 554, respondent Lisa Climans and appellant Michael Latner had a committed romantic relationship lasting nearly 14 years. They lived in separate residences in Toronto but stayed together whenever they travelled outside the city, including for two months each summer in Muskoka. They did not merge their finances or jointly own property, but they presented as a couple in public.
Early in their relationship, the appellant, a wealthy man, began to financially support the respondent and her children. He, however, told her that he would not marry or live with her unless she signed a domestic contract; this was never signed.
The respondent stopped working once they entered into a relationship and only resumed work, as a yoga instructor, following the end of their relationship. The respondent then filed an action in the Ontario Superior Court of Justice seeking recognition as the appellant’s spouse and the payment of spousal support.
The appellant opposed this claim, arguing that they were not spouses, had never married and had never cohabited. He then appealed the Superior Court’s decision, which had found that they were spouses under s. 29 of the Family Law Act, R.S.O. 1990, c. F.3 and which had ordered him to pay the respondent spousal support for an indefinite duration.
The Court of Appeal for Ontario partly granted the appeal. It upheld the trial judge’s determination that they were spouses. However, it found error in the trial judge’s finding that the Rule of 65 was applicable. Thus, the Court of Appeal ordered the payment of spousal support for 10 years, in lieu of indefinite spousal support.
The first issue pertained to whether the appellant and the respondent were considered spouses under s. 29 of the Family Law Act. Cohabitation under that provision requires that the parties lived together and shared a conjugal relationship, as stated in s. 1(1) of the Act.
“Lack of a shared residence is not determinative of the issue of cohabitation,” wrote Justice Eileen E. Gillese for the appellate court. “As the trial judge’s review of the caselaw demonstrates, there are many cases in which courts have found cohabitation where the parties stayed together only intermittently.”
The court deferred to the trial judge’s factual findings and application of the law regarding this issue. The trial judge had considered the Molodowich factors for a conjugal relationship and the factual circumstances to determine that there was cohabitation. The appellant failed to identify any errors in these factual findings, the appeal court said.
The second issue was whether the parties started cohabiting within the first five months of the relationship, which would trigger the applicability of the Rule of 65, pursuant to the Spousal Support Advisory Guidelines. The court may award indefinite spousal support if Rule 65 applies.
The court ruled that the trial judge palpably erred in awarding indefinite spousal support, since the factual findings showed that the parties did not start cohabiting within the first five months of their relationship. Certain events in their relationship occurred past the five-month mark, such as the first time the couple lived together for two months at the appellant’s summer cottage, the appellant proposing marriage and giving the respondent a ring, as well as when their families and friends began to consider them a couple.
The court therefore awarded support for ten years, instead of for an indefinite period of time.
“This decision garnered attention in the media because it drew attention to the fact people may be incurring spousal support obligations without realizing it,” wrote Kathleen Broschuk of Mann Lawyers LLP in a blog post analyzing the case. “The best way to avoid surprise support obligations is to enter into a domestic contract.”
“Clients may think that because they are not legally married or because they are not cohabiting year-round with their partners they do not have support obligations,” Tamar Silverbrook and Corina Weigl of Fasken Martineau DuMoulin LLP wrote on the law blog All About Estates. “Lawyers and advisors may wish to discuss assessing the character of clients’ romantic relationships, taking into consideration all of the factors considered in Latner.”