Written By: Nick Todorovic and Ryan Marinacci, Student-at-Law
The fact that parties maintain separate residences does not prevent the finding of cohabitation.
- Justice Karakatsanis writing in Campbell v. Szoke, 2003 CanLII 2291 (ON SC) at para 52.
Spousal status carries enormous considerations in the context of wrongful deaths. This is because under s. 61 of the Family Law Act, damages are awarded to a spouse for housekeeping and for the loss of guidance, care, and companionship resulting from the death of the other spouse.
The Court of Appeal for Ontario in Climans v. Latner, 2020 ONCA 554 (CanLII) recently confirmed that partners in a committed relationship can still be considered spouses under FLA s. 29 even though they maintain separate households throughout the entire relationship.
The Court found that Justice Shore had correctly interpreted the legislation and articulated the governing principles in determining that the parties were spouses.
At issue at trial was whether the Applicant met the definition of “spouse” under FLA s. 29. She and the Respondent had been in a relationship for 14 years but had maintained separate residences the entire time.
Despite their separate households, Justice Shore concluded that the Applicant and Respondent were spouses under the FLA.
Justice Shore found as a fact that the Applicant and Respondent had been in a committed relationship, preferring the objective contemporaneous evidence of the relationship over the testimony of the two parties embattled in divorce proceedings. In fact, while the Respondent claimed that the Applicant was no more than a travel companion or girlfriend, the couple exchanged commitment rings and celebrated their anniversary every year; and there was an expectation that the Applicant be available to the Respondent.
Justice Shore also found that economic dependency had been created almost from the beginning of the relationship. Within one month of meeting, the Applicant had quit her job to be with the Respondent who then started to cover the Applicant’s expenses, support her children from a previous marriage and pay her a fixed monthly amount.
The couple also held themselves out to be a committed couple to friends and extended family, attending one another’s family events, milestones, and holidays.
Living together was not as obvious. With respect to cohabitation, Justice Shore stated,
To determine whether the parties lived together in a conjugal relationship, all the factors must be considered in conjunction with one another. However, there needs to be some element of living together under the same roof. The very definition of “cohabit” requires that the parties live together in a conjugal relationship.
Acknowledging that this was not a clear cut case, Justice Shore noted that the couple had lived together at their cottage during the summer months every year and had regularly traveled and lived together in Florida. In addition, early in the relationship, the Applicant had resided at the Respondent’s on weekends when her children were with her husband, although this changed later in the relationship. Finally, Justice Shore concluded that when viewed in the context of the relationship as a whole, the living arrangements were enough to qualify the couple as spouses. However, when taken without the other factors of the relationship, the living arrangements, on their own, would not have been enough for spousal status.
This result was unsurprising given the Court’s previous decision in Stephen v. Stawecki, 2006 CanLII 20225 (ON CA), where it held at para 4 that “The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship.”
Given the decisions in Climans, partners can be spouses and FLA damages should flow, even where both individuals formally maintain separate households.