Spousal Support & Alimony

Did Man Owe Spousal Support to a “Friend with Benefits”?

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Did Man Owe Spousal Support to a “Friend with Benefits”?

In a recent case called Jackson v. Moore, the court had to consider several issues arising from the relationship between a 30-year-old man and a 24-year-old woman who had two children together, but never married or lived together.  They had initially met in 2012, dated briefly, then reconnected for a four-year relationship starting in 2014.

The court quickly settled out their respective child support obligations, and then turned to the question of whether in these circumstances the woman could be considered the man’s “spouse” within the definitions found in the Family Law Act, and thus entitled to receive spousal support from him.

Admittedly, they had not lived together continuously for a period of not less than three years, which is one of the tests set out in the definition. However, the woman claimed that they met the other defined test:  As parents of a child, they had “cohabited” in a “relationship of some permanence”, and that theirs was a “conjugal” relationship between them.

The man objected to this characterization.  He freely admitted that he and the woman were parents together, but claimed that they were never spouses.  They were only friends who were sexually intimate.  He called their relationship a “friends with benefits” situation.

The court examined the well-established factors to be considered when determining whether a conjugal relationship exists.  These included a couple’s living arrangements, sexual and personal behaviour, and whether they ate meals together, bought gifts for each other, and socialized together (among several other factors).

On the issue of their living arrangements, the court heard that the woman had rented an apartment from the man, but they lived in separate units.  The man spent little time at the woman’s place – only a few hours a week to visit his children – and never stayed overnight. He did not keep any clothes or personal belongings there.  As such, the court could not conclude that they lived under the same roof. Nor did they eat meals together, exchange gifts, or celebrate special occasions together, the court found.

As for the tests relating to sexual activity and fidelity, the court noted that the man actually had another girlfriend that he was devoted to – over and above any connection he had to the woman.  As the court explained:

The woman testified that she was aware that [the man] was seeing other women during the time she resided at the [rental] property, as she said that [the man] talked to her about his other relationships. [The woman] referred to [a particular girlfriend] as [the man’s] “girlfriend.” She testified that she knew that [the man] moved in with [that girlfriend] in the summer of 2016 and lived with [her] in a common law relationship for approximately three years thereafter.

As between the man, woman and the girlfriend, this was a situation that was known and acquiesced to by all involved.  It was also telling, in the court’s view, that the woman had herself dated other men during this period.

With this in mind, the court found that during the relevant 4-year period the man was never cohabiting in a conjugal relationship with the woman;  he may have had a casual dating relationship with her, but it was never a spousal one.   Clearly, the woman did hope it would develop into something more, but she was “very naïve about her relationship” with the man, the court said.  It added:

 In my opinion, in the present case, [the woman] may have wished or hoped that she was in a spousal relationship with [the man], but it is clear that [the man] did not commit to the relationship. [The woman], if she had been objective, would have recognized that [the man] did not make any spousal relationship commitment to her.

The facts simply did not support the woman’s assertion that she was a spouse during the time she lived in the man’s rental apartment.  The court dismissed her claim for spousal support.

For the full text of the decision, see:

Jackson v. Moore, 2019 ONSC 6477 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, 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. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.