Is the Our Definition of “Spouse” Evolving?
In Ontario, the Family Law Act (FLA) is the key legislation governing the “the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the [marriage] partnership”, as the FLA’s preamble expressly states. For the purpose of that exercise, the term “spouse” is defined in section 1 to include two persons who are actually legally married, or who in good faith entered into a marriage that turned out to be void or voidable. (And note that the definition is not limited to male-and-female partnerships only; the definition expressly uses the gender-neutral “two persons”).
However, the FLA also broadens the definition of “spouse” for certain purposes, most notably for determining support obligations between ex-spouses and between former partners in common-law relationships. In section 29 of the FLA the term “spouse” is expanded to encompass two unmarried persons who a) have cohabited for no less than three years, or b) are “in a relationship of some permanence” and have a child together.
That last term – a “relationship of some permanence” – might be somewhat difficult to quantify, and courts sometimes struggle to put their collective judicial finger on where the line is to be drawn.
In an interesting recent decision from the British Columbia Court of Appeal called Weber v. Leclerc, the Court grappled with the meaning to be given to the analogous term – namely cohabiting in a “marriage-like relationship” – that is found in the equivalent family law legislation in the province. In particular, the Court considered the effect that societal norms may have on precisely where that fine line may be drawn.
The court had been asked to determine whether two unmarried former partners, who happened to keep respective finances separate throughout their now-ended union, nonetheless met the legislative criterion for a “marriage-like” relationship. In this context the B.C. Court of Appeal observed:
The parties have referred to three decisions of this Court that have addressed the scope of definitions of “spouse” similar to the one in the FLA … It is noteworthy that the cases span a considerable period of time – a significant factor in terms of an expression like “marriage-like relationship”. Social norms surrounding marriage have changed considerably over the years, and it should not be surprising that, along with those changes, evaluations of what relationships are “marriage-like” have also evolved.
Later in the judgment, the Court added:
[The woman] argues that approaches like that taken in [those prior Court decisions] are nothing more than “checklists”, and do not adequately analyse the nature of a relationship. While I agree that a checklist approach is not appropriate, it is my view that cases like [those] are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship.
With that said, the Appeal Court did acknowledge that the parties’ intentions – particularly the expectation of a long, indeterminate relationship – may also be important when assessing whether the “marriage-like” standard has been met in any given case. However, it also stressed that mere intentions are not enough; rather they must be coupled with objective evidence of the parties’ lifestyle and interacts.
Should family-legislation concepts and terms such as “a marriage-like relationship” or “a relationship of some permanence” be influenced by social norms and expectations? What are your thoughts?
For the full text of the decision, see:
Weber v. Leclerc, 2015 BCCA 492