Many believe that spousal support only applies to married couples. In fact, common law spouses may be required to pay spousal support as well.

When are common law partners considered “spouses”?

Section 29 of the Family Law Act provides an expanded definition of “spouse” with respect to support obligations which includes either of two persons who are 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 parents of a child.

For this article, we will focus on the first part of this definition, continuous cohabitation.

The Family Law Act defines cohabit to mean, “to live together in a conjugal relationship, whether within or outside of a marriage”.

The Molodowich v Penttinen (1980), 17 R.F.L. (2d) 376 (Ont Dist. Ct.) decision provides a non-exhaustive list of factors, later adopted by the Supreme Court of Canada, to consider when determining whether two individuals lived together in a “conjugal” relationship:

  1. Shared shelter
  2. Sexual and personal behaviour
  3. Services
  4. Social activities
  5. Economic support
  6. Children
  7. Social perception of the couple

Now, what does “continuous cohabitation” mean? This question was explored in the case of Climans v Latner 2019 ONSC 1311, later affirmed, at least in part, by the Court of Appeal.

Let us begin with a little bit about the backstory. Lisa Climans and Michael Latner were together for almost 14 years. During this time, they each maintained their separate residences. Early in the relationship, they spent alternating weekends together, mostly at Michael’s residence. Later in the relationship, they spent the summers in Muskoka and every other weekend in the winter in Florida. Michael financially supported Lisa and her children from a previous relationship in many ways throughout the relationship. They gave each other “commitment” rings and referred to each other as spouses.

Were Climans and Latner living together in a conjugal relationship outside of marriage for a continuous period of not less than three years, taking into account Molodowich indicia of conjugal?

The short answer: Yes.

According to Justice Shore in Climans v Latner at paragraph 128, shared shelter arrangements are one of several factors to be considered but “… there needs to be some element of living together under the same roof”.

In other words, spousal support obligations can arise between two unmarried individuals who never formally live together so long as they lived together in some way at least some of the time. Also, whether or not the individuals are “spouses” requires a full analysis of all the factors, and not just their living arrangements.

Justice Shore did a complete analysis of the relationship using all of the factors as a backdrop to her analysis. Her conclusion was repeated and adopted by the Court of Appeal. Justice Shore’s reasoning is set out at paragraph 139 of her decision:

[139] I find that [Climans] and [Latner] were spouses for the purpose of spousal support having regard to all the factors. The dynamic of their relationship was such that all of the elements were present to some degree or another, but when viewed all together, lead to the conclusion that they were spouses:

  1. Committed relationship: The parties were in a committed [14-year] relationship, as set out in more detail above, having exchanged rings (even if only “commitment rings”, as described by [Latner]), celebrated their anniversary each and every year, exchanged numerous love letters with expressions of deep commitment, [Latner] calling [Climans] Mrs. Latner (or other similar names), and [Climans] caring for [Latner] during hospital stays. There was an expectation that [Climans] be available to [Latner], and run errands for him.
  2. Financial Arrangements: [Latner] paid for [Climan’s] expenses for the entirety of the relationship, provided her with a lavish lifestyle, paid off one of her mortgages and created a financial dependency.
  3. Extended Family and Social Perception: [Climan] was treated as family by the extended Latner family. The parties held themselves out as a couple in a long-term committed relationship to both family and friends. They have referred to each other as spouses in public. [Climan] participated in the extended Latner family lifecycle events and even walked down the aisle with [Latner] at his daughter’s wedding, standing under the chuppah (canopy) with him.
  4. Living together:
    1. I find that every summer, [Latner] and [Climan] moved up to and lived together at the cottage. This was their summer home, where they could be located throughout the summer for almost the entire 14 years.
    2. I also find that for the first several years of the relationship, [Climan] was residing at [Latner’s] home on a regular basis, when her children were not in her care, being alternate weekends. I accept that she maintained a separate home for her children, to be close to their school, and by the time they graduated the parties were already in the process of building a home together. This may have changed later in the relationship but was certainly present in the first few years.
    3. The parties also lived together as spouses when in Florida.

Had these been the only factors, I would not have concluded that they were
spouses.  However, when taken into account along with all the other dynamics in                       this relationship (summarized above), I conclude that they were common law                             spouses.

Justice Shore also includes a detailed analysis of spousal support, including an analysis of entitlement and incomes, and orders Latner to pay monthly spousal support of $53,077 per month to Climans. It is worth noting that Latner is, objectively speaking, rather wealthy. The Court of Appeal upheld the finding that spousal support was applicable but limited the duration.

What is the moral of the story? As awkward and counterintuitive as it may seem, it can be far less costly to get some independent legal advice before taking your relationship to the next level. It is helpful for both individuals to understand the potential implications of their relationship should it end. One remedy is a domestic contract, such as a cohabitation agreement or marriage contract, which can limit or control your exposure to various future obligations.


This blog is intended as general information and not legal advice.  Specific questions regarding your own circumstances should be addressed with a family lawyer. 

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