Court Cases & Orders

Separate Residences, Shared Lives: Rethinking Cohabitation Norms in Family Law

Written by Russell Alexander / (905) 655-6335

In a recent family law case, Howell, McDonnell v. Freire, Aviva Insurance, Echelon Insurance (2024 ONSC 586), the Ontario Superior Court of Justice provided crucial insights into the spousal designation within the Family Law Act following a tragic motor vehicle accident. The case sought to address whether Tristian Howell and the late Sean McDonnell could be categorized as “spouses” under Part III of the FLA.

Challenging their spousal status, defendant Jolene Freire contended that they did not meet the criteria outlined in the FLA. According to the FLA, spouses are defined as individuals who have cohabited continuously for a minimum of three years. As Sean and Tristian were not formally married, the court was tasked with discerning the nature of their relationship.

Insurance Company’s Request:

The insurance company sought access to an extensive collection of communication records, spanning nearly three and a half years, including text messages, emails, WhatsApp conversations, and Snapchats exchanged between the common-law spouses. The motive behind this request was to validate the assertion of the couple cohabiting for the requisite three-year duration, despite the presence of substantial evidence supporting their shared residence. This involved a meticulous examination of thousands of personal and intimate messages.

Court’s Decision:

The court dismissed the motion, determining that the plaintiff effectively demonstrated the timeline without relying on the messages. The plaintiff presented various documentation supporting their common-law status, indicating that they had commenced living together by at least April 2017.

  1. A tenancy agreement signed by both individuals on April 1, 2017.
  2. A letter from their landlord affirming their cohabitation since the commencement of their rental agreement.
  3. Correspondence from their roommate confirming their common-law partnership and shared living arrangements.
  4. A copy of their property insurance policy, listing both as insured parties.
  5. Income tax and benefit returns, illustrating their acknowledgment of each other as common-law spouses.
  6. A Statutory Declaration of Common-Law Union, signed by the plaintiff and submitted to Service Canada.
  7. The death certificate of the deceased, designating the plaintiff as his common-law husband.

Impact on Family Law:

In the context of Family Law, the case mentioned implies that having absolute proof, such as detailed information from text messages about when a couple started living together or intended to, is not always required. This perspective is based on the decision in Stephen v. Stawecki (2006 CanLII 20225 (ON CA), at para. 4), where the court emphasized the diverse nature of relationships and rejected the idea of a rigid test.

The court argued against a one-size-fits-all approach, recognizing the complexity of relationships. The definition of “living together in a conjugal relationship” is seen as flexible, with specific living arrangements, like sharing a home, being just one factor among several in determining if a couple is cohabiting. Importantly, the court highlighted that even if one person maintains a separate residence, it does not automatically negate the possibility of them living together in a conjugal relationship. This legal principle was enforced in Climans v. Latner (2020 ONCA 554, at paras. 51–62), affirming that the absence of a shared residence does not conclusively settle the question of cohabitation. Therefore, the legal focus lies on a comprehensive evaluation of the relationship rather than solely relying on the factor of sharing a home.

Golan Yaron, Associate Lawyer

In the evolving landscape of Family Law, recent legal precedents highlight the importance of a nuanced approach to determining cohabitation.

Howell, McDonnell v. Freire, Aviva Insurance, Echelon Insurance demonstrate that relationships cannot be neatly categorized, and a mechanical, absolute standard for evidence may not always be necessary. As we navigate the complexities of human connections, it is essential for legal frameworks to adapt and recognize the diverse nature of modern relationships.

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.