What Does it Mean to be “Living Together”, Exactly?
A few weeks ago, I considered a case that addressed whether support payors should have any input on how their support payments are spent. In reflecting on that question, the court speculated on the support payor’s disgruntlement at seeing his former spouse spend support payments on “beer, bingo and boyfriends”.
This kind of scenario provides a good jumping-off point for a related issue: If the former spouses both agree that support will terminate if the recipient spouse “lives with” a new partner, when does that threshold get crossed, exactly?
Although there are many cases from Ontario that consider this, I noticed a good discussion in an older Newfoundland case called Cooper v. Cooper. There, the husband had agreed to pay support to his ex-wife, with whom he had a traditional marriage for 28 years. However, the now-divorced couple agreed that spousal support would end if the ex-wife decides to “remarry or reside with another man, as husband and wife.”
In 1993, about a year after the divorce, the wife started a relationship with another man, with whom she lived in Florida for the winter months of each year (and particularly so since she had been declared redundant at her work). About five years after that, the husband finally asked the court to terminate his support obligations to her, on the basis that his ex-wife had been “living with” another man within the wording of their agreement.
In order to determine the issue, the court gave detailed consideration to the relationship between the ex-wife and her boyfriend. In making this assessment, it considered a prior judgment in a case called Soper v. Soper where the court said:
I think it would be fair to say that to establish a common-law relationship there must be some sort of a stable relationship which involves not only sexual activity but a commitment between the parties. It would normally necessitate living together under the same roof with shared household duties and responsibilities as well as financial support. I would also think that such a couple would present themselves to society as a couple who were living together as man and wife. All or none of these elements may be necessary depending upon the intent of the parties.
Here, the evidence pointed to something more casual and less full-fledged than a common law marriage:
Although they lived together in Florida periodically – where they participated in neighbourhood, community and social activities together – the ex-wife kept her own apartment. They did not share bank accounts or property ownership, preferring to keep their financial affairs separate. They did not share financial information with each other, either. The boyfriend paid for expenses, while he ex-wife paid for food costs and her own long distance calls. And while they did have a sexually-exclusive relationship, the ex-wife stressed that she was a free and independent woman.
In assessing this arrangement, the court kept in mind the observations in an earlier case called Deering v. Deering:
According to the evidence, Mr. Smith and Mrs. Deering keep constant company with each other but do not live together as man and wife. They do have sexual intercourse with each other and she sometimes will prepare his meals.
If there prevails what is generally known as a common-law relationship or a domestic relationship, then it seems unfair and indeed improper that a person should be called upon to contribute to the support and maintenance of the former spouse who is a party to such a relationship.
There may, however, be only a social relationship which may or may not involve intimacies but which would not of itself preclude the spouse from claiming maintenance from his or her former spouse.
…
The relationship that prevails between Mr. Smith and Mrs. Deering falls somewhere between these two, closer to the former than the latter. There is a business relationship also because Mrs. Deering pays rent to Mr. Smith. They frequently share each other’s beds and bodies and dining table but fall short, albeit by little, of having an actual common-law relationship.
Returning back to the facts of the present case, the court added:
I question whether one should automatically regard it as unfair for support to continue merely because the ex-wife ends up in a common-law relationship, after a lengthy traditional marriage as in the present case, where the wife has probably been economically disadvantaged by her involvement in raising children.
The clause in the former spouses’ agreement governed; there was no husband-and-wife relationship between the ex-wife and boyfriend, so the threshold for ending support had not been met. The husband was obliged to continue his financial obligations (and his subsequent appeal of the ruling was dismissed).
For the full text of the decision, see:
Cooper v. Cooper (1998), 168 Nfld & PEIR 58; 42 RFL (4th) 317 (NL SCTD)
Cooper v. Cooper, 2001 CarswellNfld 17, 2001 NFCA 4, [2001] N.J. No. 19 (Nfld. C.A.)
Soper v. Soper (1985), 44 R.F.L. (2d) 308; 67 N.S.R. (2d) 49 (N.S.C.A.)
Deering v. Deering (1986), 60 Nfld. & P.E.I.R. 230 (Nfld. T.D.)
