Defining “Spouse” for Spousal Support Purposes – Close Might Be Good Enough
A recent case called Rowe v. Piche considers whether an unmarried man and woman might be “spouses” – and be potentially obliged to pay spousal support to each other – even though they technically fall a bit short of the threshold for cohabitation in the statutory definition of “spouse” found in Canadian divorce law.
Specifically, s. 29 of the Divorce Act defines “spouse” to include “either of two persons who are not married to each other and have cohabited … continuously for a period of not less than three years”. Moreover, s. 15 of the Act defines “cohabit” to mean “to live together in a conjugal relationship, whether within or outside marriage.”
The problem in this case was that the couple, named Linda and Michael, had a long relationship history together but for the most part kept separate residences throughout. They did buy a house together just before separating, but their period of actual cohabitation was a few week’s short of the three years required in s. 29 of the Act.
Nonetheless, Linda applied for spousal support from Michael, and it was initially granted at a first trial without Michael being in attendance (he had apparently confused the starting time of court that day). At his request, the court indulged him and granted a retrial under granted under the circumstances.
At that second trial (which included evidence from a large cast of characters including mutual friends, the man’s current souse, a real estate agent, the lawyer for the woman during her divorce proceedings from a previous spouse), the judge was left with the task of untangling a large amount of filed material in order to determine the true nature of the relationship between Linda and Michael. On this point the court wrote:
12 In the end result, I was left with the task of sifting through a great deal of evidence spanning at least 15 years from 1992 to 2007 … Given the history of these proceedings and the nature of the evidence admitted into the record, the judicial search for the facts to determine the issues resembled a forensic investigation or audit or, more accurately, an archaeological dig into the past of Linda and Michael. … In the end result, I am not convinced that the scrambling of this veritable avalanche of material prevented me from determining the issues before the court at the end of the trial as there were significant nuggets of information that provided a path to the finding of facts.
In examining all the evidence, the court said the essential question was whether Linda had proven that she and Michael they were in a common law relationship of at least three years, such that Michael would be obliged to pay her spousal support under the Act. Moreover, the issue was no so much the length of the relationship between the couple, but rather the nature of that relationship.
With that test in mind, the court reviewed the nature of the couple’s common-law relationship. They had first met in the 1980s, when the then-teenaged Michael had come to live with Linda’s family after deciding to leave his own dysfunctional family. Although there had been a few periods over the past 20 years where he lived elsewhere, the court found that “on the whole he spent a good deal of this youth and adulthood with Linda.” It was true that Linda eventually married someone else at one point, but when that relationship dissolved she and Michael immediately embarked on an official girlfriend/boyfriend relationship. Even though they predominantly lived in separate residences for most of the time, they did have a sexual relationship, and presented themselves to others as a couple to others. They also ate meals together, attended and hosted family events, and engaged in the behaviours typical of a couple in front of their family and friends. They maintained a joint bank account, bought big-ticket items together, and jointly held their motor vehicle insurance. Two separate rings described as a diamond “engagement” ring and a “friendship” ring and bought in Michael’s name. They even had what the court describe as a “glam” photo taken together, which the court said was “very striking, easily identifiable as a very intimate couple and not typical of a boyfriend/girlfriend relationship.”
In opposition to this, Michael put forth various evidence to demonstrate the apparent “separate-ness” of their lives; for example, he claimed that he and Linda slept in separate bedrooms in the home they purchased together just prior to separation. But even assuming this was true, the court pointed out that it was not automatically determinative, since the Divorce Act expressly allows for the concept of “cohabitation” to encompass spouse who maintain separate residences, in some circumstances.
More tellingly, the court wrote the following about Michael’s evidence:
“It was instructive to read the transcript of Michael’s examination as he answered questions that would meet many of the criteria for a finding of cohabitation as set out [in other court decisions] At questions 87 and 88, Michael asserted: “We weren’t cohabiting together we both had separate residences. I didn’t support Linda in anyway. She’s still married. We couldn’t be living together. It’s against the law. I don’t think it’s right morally.” A very interesting position given that Michael and Linda had been engaging in sexual relations for approximately ten years with Linda being still married to Garnet Rowe during the entire time. “
On the whole, and even though Linda and Michael had never formally married, the court concluded that their relationship was of a sufficiently closeness and connectedness to make them “spouses” under the Act. Moreover, they had met the threshold of three years’ cohabitation so as to give rise to a mutual support obligation. Applying all the normal factors (including each spouse’s need and ability to pay), the court ordered Michael to pay Linda about $500 in support every two weeks retroactive to June 1, 2008, an about $400 per week starting in June of 2012.
For the full text of the decision, see:
Rowe v. Piche (2012), 2012 ONCJ 114;
Additional reasons at (2012), 2012 ONCJ 353 http://canlii.ca/t/frp8m
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