ONCA Says To Be “Spouse” Not Necessary to Have Shared Residence
In the recent decision, Climans v. Latner, 2020 ONCA 554, the Ontario Court of Appeal reaffirmed an expansive view of “spouse” for support purposes under Ontario’s Family Law Act.
In the case, a woman and man had a romantic relationship from October 2001 to May 2015, for almost 14 years. They were never married. During their relationship, they maintained separate homes in Toronto and did not live together. They each had children from previous relationships. When they met, the man was 46 years old and already very wealthy. The woman was 38 years old and quit her employment one month into their relationship.
From the beginning, the man provided the woman and her children with a lavish lifestyle. He paid her home expenses and gave her a monthly allowance, access to his credit cards, car, and medical/dental insurance. He bought her several fur coats, expensive jewelry, paid for her cosmetic procedures, paid for extravagant holidays, and chartered private jets. They also celebrated anniversaries and special occasions together and generally held themselves out as a couple.
When their relationship ended, the woman brought an action in the Superior Court of Justice, seeking to be recognized as the man’s spouse and that he be required to pay her spousal support. The man contested the claim that although they had a romantic relationship, they were never married or cohabited.
Under section 29 of the Family Law Act, to be common-law spouses, parties must have cohabited continuously for at least 3 years.
Section 1(1) of the Family Law Act defines “cohabit” as living together in a conjugal relationship. Notably, section 29 of the Family Law Act already expands the definition of spouse provided under section 1 to also include unmarried couples.
In any event, at trial, the man argued the woman was not entitled to spousal support because she was not his spouse. They did not “live together” as they maintained separate homes in Toronto throughout their entire relationship.
The Hon. Justice Shore, who presided at the trial, disagreed. She ordered that the parties were still spouses within the meaning of section 29 of the Family Law Act.
In her analysis, she applied principles from a case known as Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), which was approved by the Supreme Court of Canada in a decision known as M. v. H., 1999 CanLII 686 (SCC),  2 SCR 3. Moldowich stands for the principle that courts must consider a non-exhaustive list of criteria when determining the existence of a “conjugal relationship”:
- shared shelter;
- sexual and personal behaviour;
- social activities;
- economic support;
- children; and
- the social perception of the couple.
The Hon. Justice Shore concluded at trial that when applying these factors, she had “no doubt” that the parties had been in a conjugal relationship :
They were in a long term committed relationship. Mr. Latner treated Ms. Climans as his wife. Their relationship was sexual in nature. They held themselves out as a committed couple and were perceived as a couple by their family and friends. Ms. Climans was considered family by the extended Latner family. The parties participated in social activities as a couple. Mr. Latner supported Ms. Climans financially. They travelled extensively together. They lived together at the cottage each summer.
The issue that gave the Hon. Justice Shore pause was whether the parties had a “shared shelter.” Could the man and woman have “lived together” if they maintained separate homes? This was a hurdle because the very definition of “spouse” requires the parties to live together.
The Hon. Justice Shore overcame this hurdle by looking at the following circumstances of the relationship:
- the parties were in a committed 14-year relationship, with love letters, anniversaries, care during hospital stays, and errands;
- the man had paid for the woman’s expenses for the entirety of the relationship;
- the couple had publically referred to each other as spouses, and their friends saw them as spouses;
- they spent every summer at the man’s cottage;
- for the first few years, the woman stayed over at the man’s house regularly;
- the parties also “lived together as spouses” when in Florida (though it is unclear what this means.
Having concluded that the parties were spouses, the Hon. Justice Shore then proceeded to award the woman spousal support of $53,077.00 monthly to be paid indefinitely. The man had an average income of $6.5 million over the previous three years.
The man appealed. At issue before the ONCA was whether:
- the man and woman met the definition of “spouse” in s. 29 of the FLA;
- indefinite spousal support should have been ordered; and
- the woman should have been awarded substantial indemnity costs.
The appeal was allowed in part. Although the court reduced the period of spousal support to 10 years and lowered costs to $277,868.00 from the $324,179 awarded at trial, the ONCA refused to review the Hon. Justice Shore’s conclusion on the definition of “spouse”. He still had to pay spousal support.
The ONCA stated that:
Lack of a shared residence is not determinative of the issue of cohabitation. 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.
Rather than exploring the issue in-depth, however, the ONCA took the less cumbersome approach of citing (hiding behind) the standard of review. It stated:
The trial judge correctly interpreted the legislation and articulated the governing legal principles in deciding whether the parties had been spouses. We have been pointed to no errors in her factual findings, much less ones that are palpable and overriding. In effect, on this ground of appeal, Mr. Latner asks this court to reweigh the evidence – that is, to apply the law to the facts and come up with a different result than that of the trial judge. But that is not the role of this court. Absent reversible error, this court must defer to the trial judge’s application of the law to the facts as she found them.
In some ways, this is a disappointing analysis because the Moldowich factors provide such an expansive view of the words “live together” that its conclusions are unsettling. Do I really live together with a person if I stay at their cottage each summer? What if they visit me while I am in the hospital, and run me some errands – is that really living together? Although the Moldowich factors were cited by the Supreme Court, in some ways, the area begs for appellate analysis. The Moldowich case is from 1980.
Realistically, the factor that was perhaps most fatal to the man’s case here was his previous pattern of paying for everything – mortgages, fur coats, jewelry, expenses, vacations. Courts generally have a disinclination to disrupt status-quos or pre-existing arrangements between people. If the man provided financial support in the past, a court would likely find a way to continue that arrangement into the future.
This means two things: firstly, people should always be careful before volunteering any benefits of any kind to any other person, lest some court waiting around the corner view it as an existing state of affairs that must continue indefinitely. Secondly, you may not be as protected as you think. It does not hurt to speak with a lawyer and get a cohabitation agreement signed just in case.