When Do People “living together” become Spouses?

It is easy enough to tell when people are married: there was a ceremony. And, if they forgot the date; it’s on the marriage certificate.

But, what about couples who live together? It starts out for a few days, then a few weeks, then it’s months, and after a while it can become years. So, at some particular point in time, the “couple became spouses”. That is significant for support purposes and other rights under the Family Law Act, and the Succession Law Reform Act. It is also significant for tax purposes, government and company benefits, the division of property between parties, and other related purposes.

For some reason, this is a very, very difficult legal determination and has troubled Judges for centuries.

Judge S.R. Kurisko in Molodowich v. Penttinen, reviewed the law concerning cohabitation, conjugal relationships, living-together, matrimonial amenities, desertion, and consortium and found a great deal of difficulty coming up with a final conclusive all-encompassing definition. In brief, “it depends upon the circumstances”.

Here are some principles he came up with in 1980, which were later viewed with approval by the Supreme Court of Canada in the M v. H case in 1999:

“I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words “cohabitation” and “consortium”:

 (a)Did the parties live under the same roof?
 (b)What were the sleeping arrangements?
 (c)Did anyone else occupy or share the available accommodation?
 (a)Did the parties have sexual relations?  If not, why not?
 (b)Did they maintain an attitude of fidelity to each other?
 (c)What were their feelings toward each other?
 (d)Did they communicate on a personal level?
 (e)Did they eat their meals together?
 (f)What, if anything, did they do to assist each other with problems or during illness?
 (g)Did they buy gifts for each other on special occasions?
  What was the conduct and habit of the parties in relation to:
 (a)Preparation of meals,
 (b)Washing and mending clothes,
 (d)Household maintenance,
 (e)Any other domestic services?
 (a)Did they participate together or separately in neighbourhood and community activities?
 (b)What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
  What was the attitude and conduct of the community towards each of them and as a couple?
 (a)What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
 (b)What were the arrangements concerning the acquisition and ownership of property?
 (c)Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
  What was the attitude and conduct of the parties concerning children?”

Naturally, each case is different and the weighting associated with these various aspects of “married life” will vary from case to case, but that was at least a somewhat comprehensive list of relevant matters to raise in order to answer the question: are these people spouses?

If there are a sufficient number of positive responses then the answer will be “yes” and a good number of legal rights will flow from that conclusion.

Brian Madigan LL.B., Broker


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