Spousal Support From a Common Law Ex-Spouse

In order to claim spousal support from a former common law spouse, you must satisfy the courts that you and your former spouse qualified as spouses under the law.

For couples who are not married, section 29 of the Family Law Act (FLA) defines spouses as being two persons who are not married to each other and have cohabited,

  1. continuously for a period of not less than three years, or
  2. in a relationship of some permanence, if they are the natural or adoptive parents of a child

To cohabit means to live together in a conjugal relationship, whether within or outside marriage. In other words, mere roommates don’t count. So how have the courts defined conjugal relationships?


Seven factors used to determine if people are in a conjugal relationship

Regarding spousal support, the Ontario District Court in Molodowich v Pentinnen in 1980 developed a 7-factor test to determine whether a conjugal relationship exists.

    • Did the parties live under the same roof?
    • What were the sleeping arrangements?
    • Did anyone else occupy or share the available accommodation?
    • Did the parties have sexual relations? If not, why not?
    • Did they maintain an attitude of fidelity to each other?
    • What were their feelings toward each other?
    • Did they communicate on a personal level?
    • Did they eat their meals together?
    • What, if anything, did they do to assist each other with problems or during illness?
    • Did they buy gifts for each other on special occasions?
    What was the conduct and habit of the parties in relation to:

    • Preparation of meals,
    • Washing and mending clothes,
    • Shopping,
    • Household maintenance,
    • Any other domestic services?
    • Did they participate together or separately in neighbourhood and community activities?
    • 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?
    • What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
    • What were the arrangements concerning the acquisition and ownership of property?
    • 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?

Defining “Continuous Cohabitation”

The courts in Ontario have defined cohabiting continuously with the following factors in mind:

  • What is important is not physical separation, but the state of mind of the parties.
  • Physical separation does not mean broken up; dissolution requires intent:
    • “Whether couples are separated is a question of intent, not geography; at least one of the parties must intend to permanently sever the relationship” (Sullivan v Letnik)
    • For dissolution, at least one party must have “demonstrated in a convincing manner that this particular state of mind is a settled one” (Sanderson v Russell)


Defining Relationships “Of Some Permanence”

The court in Hazlewood v Kent determined that the permanency of relationships under the FLA should always to be determined on the facts of each case and with regard to the following factors:

  • Intention to be treated as a family (for instance, the existence of children born to a couple)
  • Financial support
  • Alternating roles in relationship as a result of the birth of the children
  • Some time spent together on a regular basis
  • Residence
    • The amount of residence sharing necessary to support a finding of a spousal relationship and will probably be less when children are present and when there is ongoing financial support, though these will not be determinative criteria of spousal support in all cases.


Spousal Support – The Edge of the Spectrum

The case of Mahoney v King showed that it is possible for a woman who was in a five to six year relationship with a married man, with whom she did not live – and who lived with his wife – to be considered a spouse. While this case was sent back to trial, it remained a possibility, so the evidence seemed to show the potential for a mistress (or a male partner) to claim that there is a spousal relationship and that spousal support may be appropriate.

Contact us for a consultation on divorce, spousal support, or other family law matters.

Read more about Family Law and Divorce