As I have written before , the Family Law Act provides support rights not only to separated married spouses, but to common law spouses as well. This second group consists of those partners who, while not formally married, have “cohabited continuously for a period of not less than three years”.
But in today’s society there exists a vast array of different and sometimes unique relationships and living scenarios, and this can raise questions about what it means to “cohabit”. Blended families are now commonplace, but in some rarer circumstances a partner may have had to move across the country or abroad to work for extended periods of time, or the partners may agree – for personal and relationship-related reasons of their own – that they will continue to present themselves to the world as a couple, but will each have their own, separate residences.
So can partners who deliberately live apart from each other be “cohabiting”? Maybe.
The Family Law Act itself says that “cohabit” means “to live together in a conjugal relationship, whether within or outside marriage.” A few Ontario court cases have examined and untangled how far this definition might go, for the purposes of determining whether a common law couple are cohabiting.
Primary among them is Molodowich v. Penttinen,  O.J. No. 1904, where the court said the following factors were relevant in deciding whether a couple meets the definition:
(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?
(3) SERVICES: What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(d) Household maintenance,
(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?
(5) SOCIETAL: 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?
(7) CHILDREN: What was the attitude and conduct of the parties concerning children?
The court stressed that all of these factors must be considered on case-by-case basis, and that a couple need not meet all of these factors; they need only satisfy most of them on the whole.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com