Appeal Court Says: When Common-Law Unions End, “Economic Self-Sufficiency” is Still the Goal
In a recent spousal support-focused decision called Boudreau v. Jakobsen, the Court of Appeal emphasized that even for common-law unions (as opposed to formal marriages), the former romantic partners must strive for economic self-sufficiency from each other once the relationship ends.
The couple had been in what the court found was a common-law relationship that ended in 2018 after almost 30 years, with them cohabitating for over 20 of them. The woman was 49 at the time of separation, and the man was 52. They never married, and had no children.
During most of the relationship, the man suffered from mental health issues and – in the few years he did work – earned less than $10,000 annually. In contrast, the woman achieved significant success in her career, and in the court’s words:
She paid the household, mortgage, vacation and other expenses for the parties throughout the relationship. She financially supported the [man] who had access to her bank and credit cards, as well as a joint bank account. They cared for two dogs together. They presented to the public as a couple.
After the relationship ended, the man remained unemployed. He succeeded in obtaining a court order requiring the woman to pay him retroactive and ongoing spousal support, in an amount below the lowest end of the Spousal Support Advisory Guidelines (SSAGs). The trial judge set a 7-year duration, with a mandatory review at that time, unless a material change in circumstances justified one earlier.
On later appeal, the Ontario Court of Appeal rejected the woman’s argument that the parties were “no more than friends and roommates” and did not qualify as common-law spouses in the legal sense. To the contrary, the Court found, the woman had consistently identified the man as her common-law spouse and beneficiary in important documents.
Next, the Appeal Court reviewed the trial judge’s conclusion that the man was entitled to any support at all. It conceded the trial judge had wrongly referred to federal Divorce Act criteria (which applies only to married spouses) rather than provincial Family Law Act tests for common-law spousal status. Still, this did not wholly undermine the validity of her ultimate analysis on support, with the Court adding:
…There is significant overlap between the Divorce Act and the Family Law Act criteria. Significantly, the promotion of economic self‑sufficiency within a reasonable period of time figures prominently in both statutes. Giving the trial judge’s reasons the generous reading they require, it is clear that she considered all the relevant factors in determining whether spousal support was warranted, including the [man’s] lack of contributions and work efforts, his mental health issues, his diminished resources, the [woman’s] income, the parties’ lifestyle during their relationship, the parties’ ages, and the length of their relationship.
There was ample evidence to support the conclusion the man was economically dependent on the woman during their relationship, and that he needed financial support after it ended. Specifically, he was currently receiving disability benefits, lived in shelters, and frequented food banks. The Court added:
Economic self-sufficiency does not mean mere subsistence but is a relative concept tied to the achievement of a reasonable standard of living having regard to the lifestyle the couple enjoyed during their relationship and the time needed to reach the goal of self-sufficiency.
Finally, in reviewing the amount of spousal support payable, the trial judge had also made no error that merited judicial intervention. The ordered amount was not high in light of all the factors; moreover, the award was structured to encourage the man to become self-sufficient in the near future. The Court explained:
The trial judge was alive to the [man’s] deliberate failure to become economically self-sufficient notwithstanding any demonstrated impediment other than his self-imposed aversion to what he saw as low-level work that “would really rip out [his] soul”. As a result, she imputed income to him and implicitly imposed a time-limited award by ordering a mandatory review of her support order no later than 2025. By her findings and her review order, the trial judge sent a strong message that the [man] will have to show significant efforts toward economic self-sufficiency by the time of any review or risk the termination or reduction of the spousal support order on that basis alone.
The Appeal Court dismissed the woman’s appeal.
For the full text of the decision, see:
Boudreau v. Jakobsen, 2021 ONCA 511