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May 20, 2021
Services: Family Law

Do You Need to Live Together to be Common Law? Think Again!

If you consult a lawyer about separation from your partner – whether married or unmarried – one of the first questions your lawyer will ask is “how long you have lived together or cohabited together”. 

What Does Cohabiting Mean? 

Many people incorrectly assume that cohabiting means to live together in the same house, but that is not always the case. 

Legal cohabitation may start before you and your partner live under the same roof. Sometimes cohabitation will start regardless of the fact that you and your partner have never lived together. Depending on your relationship, this means that your partner could be considered a common-law spouse before you are even aware of it. With this spousal status comes certain rights and obligations, including potential spousal support obligations.

Spousal Support

As reiterated in our previous blog post, for spousal support purposes in Ontario, the Family Law Act includes unmarried couples in the legal definition of spouse if you and your partner:

  1. Have cohabited continuously for a period of at least three years; or 
  2. Have cohabited in a relationship of some permanence, if you are the parents of a child.

The Case of Climans v. Latner

This case set a cautionary precedent for unmarried couples in a committed, romantic relationship.

Lisa Climans and Michael Latner were in a relationship for nearly 14 years. They never got married, nor did they have children together. They maintained separate bank accounts, never merged their finances, and Lisa never referred to herself as a common-law spouse on her tax returns. Notably, Lisa and Michael never lived together or purchased property together. They each had their own house in Toronto, and Lisa would only stay over at Michael’s house on alternating weekends.

However, Michael was a multi-millionaire who supported Lisa financially and provided her with a lavish lifestyle. The parties spent two months together at Michael’s cottage every summer, and during the winter, they spent weekends together in Florida. They frequently vacationed together. 

Lisa eventually quit her job to be more available for Michael. While they did not live together, they would typically eat dinner together, have coffee together in the mornings, walk their dogs together, and talk on the phone frequently. They held themselves out as a couple socially and Lisa was treated as family by the extended Latner family. 

The parties also wore rings that they gifted each other, and Michael referred to Lisa as Mrs. Latner. Michael proposed on several occasions, which Lisa accepted. However, he was not willing to marry Lisa without a domestic contract, which she would not sign.

When their relationship ended, Lisa brought a court application seeking to be recognized as Michael’s spouse and that he be required to pay her spousal support. Michael argued that Lisa was no more than a girlfriend and a travel companion. 

The trial judge agreed with Lisa and found that the parties were spouses for the purposes of the Family Law Act. Michael was ordered to pay Lisa spousal support in the amount of $53,077.00 per month. For the trial judge, the weekends spent together at Michael’s house, combined with the time together at the cottage and in Florida, was collectively enough to find that the parties cohabited and lived together. The Court of Appeal agreed with this conclusion, and ordered that Michael pay that monthly amount of support for 10 years.

Conclusion

As seen in Climans v. Latner, spending weekends together, along with occasional vacations and seasonal getaways may be enough for a court to view a couple as living together.

Therefore, if you and your partner are in a committed, romantic relationship, you may not necessarily need to live together to be considered spouses under the Family Law Act. This could result in a spousal support obligation.

However, each case is fact-specific. To avoid surprise support obligations, you may want to consider a cohabitation agreement. If you need help in determining entitlement for spousal support, or if you wish to better understand your potential obligations or claims, contact our family law team for assistance.

 

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1 Climans v. Latner, 2019 ONSC 1311

 Climans v. Latner, 2020 ONCA 554.

Related Team

Emma Storey

The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.