Divorce 101

Family Law 101: What is a “Spouse”, Anyway?

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

Family Law 101: What is a “Spouse”, Anyway?

Many of the Blogs we’ve posted over the years cover the Family Law disputes between spouses.  But while those cases tend to have unique facts, they require or involve a baseline common understanding of what a “spouse” is, under Ontario law. So today’s Blog will go back-to-basics on that discrete point.

Under the Ontario Family Law Act, the term “spouse” has its own built-in definition.  That legislation – which deals primarily with various property rights between married and unmarried partners – defines the term in its section 1(1) to mean “either of two persons who are married to each other; or have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.”  This encompasses legally-married couples of any gender, but excludes those who are unmarred even if they qualify as a common-law couple. (However, specific portions of the FLA, namely Part III – Support Obligations, contains a broader definition that encompasses those common-law unions for specified purposes.)

This FLA definition of “spouse” is an important one, because for those who fall under its purview, the FLA applies to their situation for the purposes of dividing property, determining spousal support entitlements, and the treatment of the matrimonial home.

As the definition itself makes clear, the marriage ceremony can be irregular and fail to comply with certain legal requirements, yet still give rise to a spousal relationship between the participants.  Specifically, even if the form of the marriage they went through was voidable – or even legally void – they can still be considered spouses for FLA purposes. The key is that the participants have acted in good faith in undergoing the ceremony.

With that said, the prerequisite for a valid legal marriage is a strict one: in a case called Kanafani v. Abdalla, the couple underwent a purely religious marriage, with no civil ceremony component, and the court concluded it was not valid under the Marriage Act.  By extension this meant they were not spouses for FLA purposes.

It may be a little-known fact that even polygamous marriages can count under the FLA for these purposes, since section 1(2) of the FLA provides that spousal status can arise even from a marriage that is “actually or potentially polygamous”, provided it was celebrated in a jurisdiction whose system of law recognizes the marriage as valid. This may be surprising, but it falls in line with the observation in a case called Khan v. Talaoui, where the court noted that the spirit of the FLA is to widen the traditional grounds under which spouses share in the financial rewards of their relationships.

On the flip-side, once-married former spouses (i.e. those who are already divorced) do not count as “spouses” under the provincial legislation.  In a case called Jahangiri-Navaneh v. Taheri-Zengekani a former wife’s application for spousal support under the FLA was rejected since her foreign divorce left with a non-spousal status at the time of her application in Ontario.

Finally, it’s important to know that this definition of “spouse” in the FLA is not universally applied across Canadian law:  There are unique and tailored definitions found in other provincial legislation (like the Insurance Act) and in federal legislation (such as the Divorce Act and the Income Tax Act).

For the full text of the decisions, see:

Khan v. Talaoui, 2017 ONCJ 191 (CanLII), reversed on other ground Khan v. Talaoui, 2018 ONSC 2895 (CanLII)

Kanafani v. Abdalla and Hashan, 2010 ONCJ 185 (CanLII)

Jahangiri-Mavaneh v. Taheri-Zengekani, 2003 CanLII 1962 (ON SC), reversed Jahangiri-Mavaneh v. Taheri-Zengekani, 2005 CanLII 17771 (ON CA)

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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), Oshawa, Concord, Lindsay, and Peterborough.

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