The issue and concept of cohabitation is an extremely important one in family law, relevant to a number of issues.
In essence, a couple (whether opposite-sex or same-sex) do not necessarily need to be legally married, for rights and obligations to emanate from their relationship and its breakup.
For example, section 29 of Ontario’s Family Law Act provides that, for the purposes of determining spousal support, a “spouse” includes two persons who are not married to each other and who have cohabited continuously for a period of no less than three years.
Therefore, spousal support rights can be triggered through cohabitation, not just marriage.
Additionally, the finding of cohabitation can trigger rights in relation to property. For instance, cohabitating couples (or, as they are often times called, common-law spouses) can claim equitable relief known as “unjust enrichment” in order to obtain an interest in property owned by the other party, or compensation for services rendered in connection with the acquisition, maintenance or improvement of that property. For more information on this topic, please see my newsletter entitled “Common-law couples – Has the law regarding property changed?”
Critically, therefore, it is important to determine whether two people who are living together, are in fact “cohabitating”, as defined in law.
S. 1 of the Family Law Act defines the term “cohabit” as “…to live together in a conjugal relationship, whether within or outside marriage.” Needless to say, there have been several cases that have reviewed the issue of whether a couple has “lived together”, and whether they have done so in a “conjugal relationship”.
In the Supreme Court of Canada case of Hodge v. Canada (Minister of Human Resources Development), the Supreme Court held that two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof. Further, periods of physical separation do not end the common-law relationship if there is a mutual intention to continue. A common-law relationship, it was found, ends when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.
So, therefore, the definition of “cohabitation” is not quite as straightforward as one may think.
A leading case, which set out the factors to consider in determining whether parties have indeed cohabited, is the case of Molodowich v. Penttinen, an Ontario District Court case from 1980.
In Molodowhich, Justice Kurisko had to determine whether, for spousal support purposes, the parties were “cohabiting”.
Justice Kurisko held that, in assessing whether the relationship is conjugal, the following series of questions, while not be instructive or in any way determinative of the issue, summarizes the various elements considered in the jurisprudence:
1. Did the parties live under the same roof?
2. What were the sleeping arrangements?
3. Did anyone else occupy or share the available accommodation?
Sexual and Personal Behaviour
4. Did the parties have sexual relations? If not, why not?
5. Did they maintain an attitude of fidelity to each other?
6. What were their feelings toward each other?
7. Did they communicate on a personal level?
8. Did they eat their meals together?
9. What, if anything, did they do to assist each other with problems or during illness?
10. Did they buy gifts for each other on special occasions?
11. What was the conduct and habit of the parties in relation to:
a. Preparation of meals;
b. Washing and mending clothes;
d. Household maintenance; and
e. Any other domestic services?
12. Did they participate together or separately in neighbourhood and community activities?
13. What was the relationship and conduct of each of them toward members of their respective families and how did such families behave toward the parties?
14. What was the attitude and conduct of the community toward each of them and as a couple?
15. What were the financial arrangements between the parties regarding the provision of or contribution toward the necessities of life, such as food, clothing, shelter, and recreation?
16. What were the arrangements concerning the acquisition and ownership of property?
17. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
18. What was the attitude of conduct of the parties concerning children?
The Ontario Court of Appeal case of M v. H, decided in 1999, held that these factors may be present in varying degrees, and not all of them are necessary for the relationship to be found to be conjugal. In order to come within the definition, neither opposite-sex couples nor same-sex couples are, it was held, required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
Clearly, the more of these factors that are present in a relationship, the more likely that the court will find that the parties have indeed cohabited.
Once again, and as with many issues to be decided by a judge in family law, these cases are fact-specific and are decided on a case-by-case basis,
after a judge has heard from the parties themselves and any other relevant witnesses.