Spouse or Roommate? Court of Appeal Decides in Spousal Support Case

July 22, 2021

Mark Feigenbaum

In a recent Ontario Court of Appeal case, the court had to determine whether a man and a woman had been common law spouses or friends and roommates in a spousal support dispute. 

Man and Woman Live Together for 21 Years

The man and woman met at university in 1989 and became romantically involved. They moved to Toronto and started living together in 1997, later moving into a house purchased by the woman in 2008. They presented to the public as a couple. They never married and have no children. 

While the woman achieved substantial success in her career, the man had been mostly unemployed due to mental health issues. The woman had paid the household, mortgage, vacation and other expenses throughout the relationship and had financially supported the man, who never earned more than $10,000 in the few years he had worked. 

The relationship ended in 2018 when the man was charged with assaulting the woman. At the time, the woman was 49 and the man was 52 years old.

The man applied to court seeking spousal support.

Lower Court Orders Woman to Pay Spousal Support to Man 

The trial judge concluded that the man and the woman had been common law spouses. As part of her analysis, the trial judge considered the fact that the woman had consistently named the man as her common law spouse and beneficiary in important documents, including: her will, powers of attorney for property and care, her life insurance policy, pension plan, group retirement savings plan, extended medical and health insurance, and in her income tax returns, where he was also claimed as a dependant. 

While the trial judge accepted that the man had been unable to work at times due to his mental health issues, she found that he had not provided sufficient medical evidence to support his inability to work. Rather, she held that the man had been intentionally underemployed and financially advantaged by living with the woman. As such, she imputed his yearly income at minimum wage in the amount of $29,120 from January 1, 2020 onwards. The trial judge further denied the man’s claims based on unjust enrichment and joint family venture, and found he was not entitled to compensatory spousal support. 

However, the trial judge ordered the woman to pay the man retroactive and ongoing spousal support from May 1, 2018, subject to later review.

The woman appealed the decision to the Ontario Court of Appeal.

Woman Claims She And the Man Were Not a Couple

As part of her appeal, the woman submitted that the trial judge had erred in ruling that she and the man had been spouses under s. 29 of the Family Law Act.  She denied financially supporting the man and maintained that they were no more than friends and roommates.

As such, the woman argued that she did not owe the man spousal support.

Who is a “Spouse” Under the Family Law Act?

Under s. 29 of the Family Law Act, a spouse is defined as including:

“[E]ither of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years”. 

The Act further defines “cohabit” as: “to live together in a conjugal relationship, whether within or outside marriage”. 

Court of Appeal Rejects Woman’s Claim

After reviewing the trial judge’s reasoning in her decision, the court rejected the woman’s claim that the couple had not been spouses, stating:

“We see no error in the trial judge’s analysis on this issue that warrants appellate intervention. Her determination that the parties were spouses under the provisions of the Family Law Act because they had “lived together in a conjugal relationship” for 21 years involves questions of fact and mixed fact and law that are subject to deference on appeal absent palpable and overriding error… [The woman] has not identified any palpable or overriding error. Essentially, the [woman] objects to the outcome of the trial judge’s analysis and asks us to reweigh the evidence and redo the trial judge’s findings. That is not our task on appeal.”

The court also rejected the woman’s claim that the trial judge had erred in awarding retroactive and ongoing spousal support to the man, finding no reason to interfere with the ruling.

As a result, the court dismissed the woman’s appeal and she was required to pay spousal support to the man.

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.


FAQs About the Underused Housing Tax (UHT)

Personal Tax Planning

FAQs About the Underused Housing Tax (UHT)

April 3, 2023

Tax Court of Canada Considers Whether the Income Tax Act Violets a Taxpayer's Charter Rights

Personal Tax

Tax Court of Canada Considers Whether the Income Tax Act Violets a Taxpayer's Charter Rights

May 10, 2023

<strong>Employer Appeals CRA Ruling That Worker is Employee</strong>

Corporate Tax Law

Employer Appeals CRA Ruling That Worker is Employee

April 26, 2023

Can a Will be Challenged While a Testator is Alive?

Estate Law

Can a Will be Challenged While a Testator is Alive?

April 17, 2023

2024 Budget Proposal May Increase Taxes for U.S. Citizens Living Abroad

Personal Tax

2024 Budget Proposal May Increase Taxes for U.S. Citizens Living Abroad

April 15, 2023