Can a Couple that Never Lived Together be Common-Law Spouses?

June 20, 2019

Mark Feigenbaum

Recently, an Ontario court had to determine whether a woman was entitled to spousal support as a common-law spouse despite never having lived with the man in question.

What Happened?

The parties started their relationship in 2001 and separated in 2015, after being together for 14 years.

The woman is 55 years old and has two children from a previous marriage. The man is 63 years old and has three children from a previous marriage. They did not have any children together.

After the separation, the woman trained for and began working as a yoga instructor, earning approximately $24,000 per year. The man was described by the court as “a man of significant means and wealth when the parties met and continues to be so to date”, with an average income of $6.5 million per year for the last three years.

After their separation, the woman sought spousal support, while the man claimed that they had never lived together, that she was simply his girlfriend and she was not entitled to support.

The Parties’ Positions

The court set out the woman’s position as follows:

“It is [the woman]’s position that the parties were spouses and she was treated as a wife by [the man]. Her evidence was that she received an engagement ring, a wedding band and an eternity band from [the man] during their relationship. They celebrated their anniversary each year. [The man] sent letters and cards, professing his love and commitment to her and their relationship. […] [The man] was listed as her “husband” on her passport. […] She believed them to be married for all intents and purposes, but for participating in a ceremony.”

It set out the man’s position as:

“[The man’s] position is that [the woman] was a travel companion, his girlfriend, nothing more. He acknowledges that they were involved in a romantic relationship, but said they never lived together and therefore were not spouses. The parties had separate bank accounts. He testified that he gave her a credit card as a matter of convenience for their expenses but that she did not have carte blanche to spend. They maintained their own homes in Toronto. Her children were her priority and his children were his priority. During their relationship, [the man] asked [the woman] to sign a domestic contract, which was never signed. [The man]’s evidence was that he would never marry or move in with [the woman] without a domestic contract.” 

Court of Appeal Decision

The court began by explaining that under the Family Law Act (the “FLA”) a spouse is defined as two persons who are not married to each other and have cohabitated continuously for more than three years. Under the FLA, cohabitation is defined as “to live together in a conjugal relationship, whether within or outside marriage”.

While the man and woman were clearly in a conjugal relationship, the question remained as to whether they had “lived together”. The court stated:

“Given the facts set out above, there is no doubt that all the elements/criteria […] were present in the relationship between [the woman] and [the man] and lead to the conclusion that their relationship was a conjugal relationship. They were in a long term committed relationship. [The man] treated [the woman] 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. [The woman] was considered family by the extended […] family. The parties participated in social activities as a couple. [The man] supported [the woman] financially. They travelled extensively together. They lived together at the cottage each summer. 

The one issue that gives me pause is whether they had a “shared shelter”. Did [the woman] and [the man] “live together”, even though they maintained two houses in Toronto, and if not, is it fatal to [the woman]’s claim for spousal support?”

The court explained that a finding that the parties maintained two separate residences in Toronto was not the end of the inquiry as to whether they lived together. Case law has established a flexible approach to whether maintaining separate residences eliminates a party’s ability to be considered a spouse and it depends on the facts of the case.

After reviewing the evidence, the court found that the couple qualified as living together based on their time together in travel, the man’s regular presence at the woman’s home and the time they stayed together at the cottage. The court said: 

“The dynamic of their relationship was such that all of the elements were present to some degree or another, but when viewed all together, lead to the conclusion that they were spouses.”

As a result, the court found that the definition of common-law spouse was met and the woman was entitled to spousal support. The court ordered the man to pay the woman spousal support in the amount of $53,077 per month on an indefinite basis.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.


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