In a recent Ontario case, a court dismissed a woman’s claim for spousal support, finding that her relationship with the father of her children did not meet the criteria of a conjugal relationship. The man had described their relationships as “friends with benefits”.
The mother and father met and dated briefly in 2012, while the mother was still in high school. They remained in contact and started to date again in July 2014. The mother quickly became pregnant with the father’s child.
They were never married. Their daughter was born in 2015 and their son was born in 2018.
After their daughter was born, the father purchased a rental property which he rented to the mother. Their two children lived in the father’s rental property with the mother from November 2015 until May 2018, but the father maintained his own separate residence. During this period, the mother and father continued to have an intimate relationship.
The father began dating a new girlfriend in March 2015, just prior to his daughter’s birth. The mother was aware of the father’s relationship with his girlfriend. However, the mother and father continued to have occasional sexual relations. The father would normally visit the mother and the children once a week. He would spend a couple of hours with the children until they went to bed. He would then stay for another two hours and he and the mother would have sexual relations. He would then go back to his residence; he never stayed overnight and did not move any of his clothing or personal effects into the mother’s home. The mother and father’s weekly sexual relationship continued until 2018, despite the fact that the father eventually moved in with his girlfriend.
After the mother informed the father she was pregnant with their second child in May 2018, the mother and father ended their sexual relationship and the mother moved out of the father’s property.
The Parties’ Position
It was the mother’s position that from November 2015 to May 2018 she and the father cohabited in a relationship of some permanence, and that consequently the mother was a spouse within the meaning of the FLA.
The father’s position was that the mother was his tenant, that they were not cohabiting in a relationship of some permanence, and that the mother was not a spouse. The father acknowledged that they were friends who were sexually intimate. However, he submitted that they did not “live together in a conjugal relationship.” The father described his relationship with the mother as “friends with benefits.”
The court explained that the onus fell on the mother to prove that she was a “spouse” within the definition set out in Part III of the FLA, failing which she could not make a claim for spousal support.
Section 29 in Part III of the FLA, reads:
“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
In s.1 of the FLA, “cohabit” is defined as follows:
“cohabit” means to live together in a conjugal relationship, whether within or outside marriage.
The court set out a non-exhaustive list of factors it will consider in determining whether a conjugal relationship exists, as follows:
a. Did the parties live under the same roof?
b. What were the sleeping arrangements?
c. Did anyone else occupy or share the available accommodation?
2. Sexual and Personal Behaviour:
a. Did the parties have sexual relations? If not, why not?
b. Did they maintain an attitude of fidelity to each other?
c. What were their feelings toward each other?
d. Did they communicate on a personal level?
e. Did they eat their meals together?
f. What, if anything, did they do to assist each other with problems or during illness?
g. Did they buy gifts for each other on special occasions?
What was the conduct and habit of the parties in relation to:
a. Preparation of meals,
b. Washing and mending clothes,
d. Household maintenance, and
e. Any other domestic services?
a. Did they participate together or separately in neighbourhood and community activities?
b. What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
What was the attitude and conduct of the community towards each of them and as a couple?
6. Support (Economic):
a. What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
b. What were the arrangements concerning the acquisition and ownership of property?
c. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
What was the attitude and conduct of the parties concerning children?
The court explained that these factors must be considered together; no one factor is conclusive of the issue.
After reviewing the evidence, the court found that the aggregate effect of these factors did not support the mother’s position that she was a spouse during the period in which she lived at the father’s property, stating:
“In my opinion, in the present case, [the mother] may have wished or hoped that she was in a spousal relationship with [the father], but it is clear that [the father] did not commit to the relationship. [The mother], if she had been objective, would have recognized that [the father] did not make any spousal relationship commitment to her.”
As a result, the court dismissed the mother’s claim for spousal support.
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.