The surest way to define any potential obligations to a partner, whether you live with them or not, is to secure a domestic contract
Picture this: You have a long-term boyfriend/girlfriend that you do not share a home with. You don’t merge your finances and you continue to maintain separate bank accounts. You do not own property jointly. The two of you travel, spend every summer together at your cottage, you treat your partner to generous gifts and, being in love, you also pay for their expenses. You become engaged – however, you make it clear to your boyfriend/girlfriend that you will not marry them or move in without a cohabitation/domestic contract. You hire a lawyer to present a cohabitation/domestic contract to your boyfriend/girlfriend at several points in the relationship. The contract is never signed. One day, sadly, the relationship ends. You are surprised when your boyfriend/girlfriend hires counsel and makes a claim for spousal support. Are you spouses within the definition of the Ontario Family Law Act (the “FLA”) found at section 29?
The scenario above is exactly what the Ontario Court of Appeal engaged with in Climans v. Latner, 2020 ONCA 554 (CanLii). After an eight (8) day trial, the trial judge in Latner determined that the parties had “cohabited”, which is defined in s. 1(1) to mean “to live together in a conjugal relationship” and thus, met the definition of “spouse” set out in section 29 of the FLA. The criteria set out in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist.Ct.) being: shared shelter, sexual and personal behaviour, services, economic support, children as well as the social perception of the couple, guided the trial judge’s analysis in determining whether the parties were spouses. Of all the Molodowich criteria, the one issue that the trial judge grappled with was whether the parties had a “shared shelter.” The trial judge noted that the relevant caselaw declined to impose a strict requirement that two people must move in together to be considered as living together or cohabitating. On this basis, the trial judge found that the parties had “lived together” by living together at the cottage each summer, travelling to Florida together in the winter and the fact that during the first years of the relationship, Ms. Climans lived at Mr. Latner’s home on alternate weekends. In considering the full dynamics of the relationship, the trial judge concluded that the parties were common law spouses.
As a result, the trial judge ordered Mr. Latner to pay indefinite spousal support of $53,077 per month and ordered costs against him on a substantial indemnity basis. The trial judge’s substantial indemnity cost order was based on the court’s finding that Mr. Latner’s conduct had been unreasonable in two ways: (1) his position that Ms. Climans “was nothing more than a travel companion or girlfriend” and (2) he had not been “forthcoming” in his disclosure.
Mr. Latner appealed the trial decision. The appeal was allowed in part.
The Ontario Court of Appeal upheld the trial judge’s ruling that the parties were spouses. The Court sent a simple and concise message: “Lack of a shared residence is not determinative of the issue of cohabitation.” A review of the caselaw demonstrates “there are many cases in which courts have found cohabitation where the parties stayed together only intermittently.”
However, the Court accepted Mr. Latner’s position that the trial judge erred in ordering indefinite support as the “Rule of 65” had not been engaged. The Rule of 65 is a provision under the Spousal Support Advisory Guidelines (the “SSAGs”) that provides that spousal support is payable for an indefinite basis if the total years of the relationship and the recipient’s age total 65 or more. The factual findings did not support that the duration of the parties’ cohabitation met the Rule of 65. As the Rule of 65 was not met, spousal support under the SSAGs was payable for between 7 and 14 years – the Court ordered support for ten (10) years.
Mr. Latner was further successful on the issue of costs. The Court found that Mr. Latner’s conduct was reasonable in terms of his position that the parties were not spouses as defined by s.29 and the extensive disclosure that had been provided. The Court reminded us that “a basic principle in our legal system is that a defendant is entitled to require the plaintiff to prove its claim – something more than advancing a reasonable position at law is required to attract heightened cost consequences.” The caselaw reviewed by the trial judge demonstrated that where parties neither marry nor move in together, “it is an open question as to whether they will be found to have cohabited. The fact that Mr. Latner lost on the issue of whether the parties had been spouses does not mean that his position was unreasonable.” As a result, the Court of Appeal ordered costs payable on a partial indemnity basis.
A review of Latner both at the trial and appellate level reveals that an analysis of whether the common law threshold in section 29 of the FLA has been met is not only detailed but holistic in nature.
The Courts have again reminded us that the surest way to define any potential obligations to a partner, whether you live with them or not, is to secure a domestic contract. The Family Law lawyers at Goodman Halioua LLP are experienced at drafting complex cohabitation/domestic contracts and would be please to assist you.
