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The Ontario Court of Appeal Redefines “Spouse”
A Commentary on Climans v Latner, 2020 ONCA 554
By Jonathan Martin
The law of spousal support in Canada has changed significantly over the past few decades. Once reserved for legally married individuals, spousal support obligations can now arise from a variety of different relationships, whether they produce children or not. In Climans v Latner, 2020 ONCA 554 [Latner], the Court of Appeal for Ontario endorsed the view that those in a long-term romantic relationship who do not cohabit or produce children may still be eligible for spousal support at the termination of the relationship.
Lisa Climans and Michael Latner were in a romantic relationship for almost 14 years, starting in 2001. When they met, Lisa was a retired model and marketing employee for a construction company earning about $5,000 per month. Michael Latner was a multi-millionaire businessman. Throughout their relationship, the pair maintained separate homes in Toronto and never moved in together. They kept their finances apart and never owned any property together. Neither self-reported on their income taxes that they were living in a common-law relationship. They had no children together. Both had children from previous marriages.
Mr. Latner was very generous to Ms. Climans throughout their relationship, to the extent that Ms. Climans quit her job shortly after they started dating and never worked again the entire time they were together. They would stay together at Mr. Latner’s cottage in July and August of each year. They spent weekends in Florida in the winter and occasionally for March break. Mr. Latner proposed to Ms. Climans several times but never married, partly because Ms. Climans refused to sign any prenuptial agreements. In many of his letters, Mr. Latner referred to Ms. Climans as Mrs. Latner.
The Ontario the Family Law Act, RSO 1990 has two different definitions of spouse. For most of the Act, “spouse” means legally married. However, for spousal support, section 29 defines “spouse” as any two people who have cohabited for at least three years or were in a relationship of some permanence that produced a child. New Brunswick’s Family Services Act, SNB 1980, c F-2.2 does not use the term spouse for non-married individuals, but still provides that support must be paid if the parties live continuously together for at least three years or have a child together in a relationship of some permanence living together. Fathers in New Brunswick are also liable to pay support to the mother of their child, regardless of their relationship (over and above support for the child under the Guidelines), should there be need and ability to pay.
The issue in Latner had to do with the definition of “cohabit”, a term defined in the Ontario Family Law Act as meaning to “live together in a conjugal relationship, within or outside of marriage”. It could arguably be said to have the same meaning as the provision for support at section 112(3) of the New Brunswick Family Services Act, which provides support for those “who have lived together continuously… in a family relationship”.
According to the legislation, two elements are needed in order to fall under the category of living continuously in a conjugal or family relationship. You need (1) to live together, and (2) be in a conjugal or family relationship. In most cases, whether parties are living together is easy to discover. What constitutes a “conjugal or family relationship” presents with more difficulty as you are essentially trying to reconstruct the essence of marriage itself. The courts have over time come to accept a list of criteria that indicate the existence of a conjugal relationship, while stressing that all of them need not be present. These include: sexual and personal behaviour, services, social activities, economic support, children, and the social perception of the couple” (M. v. H.,  2 S.C.R. 3, at paras. 59-60).
On occasion, the courts have had to turn their attention to the question of what constitutes “living together”. It is generally a straight forward exercise, ruling out other explanations for sharing the same roof, such as being roommates or in a landlord/tenant relationship, etc. Sometimes, however, the parties don’t share the same roof. Although this would on the surface appear to bar a claim for spousal support, life is rarely quite that simple. In Campbell v. Szoke  O. J. No. 3471 (Ont. S. C. J.) at para 52, Madam Justice Karakatsanis, now judge of the Supreme Court of Canada found that “the fact that parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one’s children.” This approach makes sense since it would be unreasonable to require that couples always live together. Married people will often live apart for a variety of reasons, including work, immigration barriers, or to care for family members. However, one would expect that the reason for not living together would have some element of necessity to it, as opposed to a mere decision by the parties not to live together. Campbell, however, found that parties who had chosen not to live together mainly because one of them did not want the legal consequences that come from that, had in fact been living together. Several lower court decisions had followed the approach in Campbell. Latner now provides an appellate decision endorsing this line of jurisprudence, which arguably dispenses with the first part of the legislative test altogether.
The decision in Latner was not reached without some difficulty. The legislation is, after all, clear that the parties need to live together. The trial judge admitted that “there needs to be some element of living together under the same roof. The very definition of “cohabit” requires that the parties live together in a conjugal relationship.” The trial judge however found the necessary elements of living together in the various vacations and alternate weekends the parties spent under the same roof. It was not without some difficulty that the Court of Appeal justified this conclusion. A crucial question in determining how long support must be paid is how long the parties cohabited. The Court of Appeal overturned the lower court finding that the parties had “cohabited” during the entire length of their 14-year relationship, since the conclusion that they had cohabited at all was in essence a legal conclusion based on the entirety of their relationship, and not a discreet finding of fact. They had never in fact lived together. The Court of Appeal could therefore not support the trial decision that support should be payed indefinitely based on a 14-year cohabitation. Interestingly, it never provided its own finding of how long the parties cohabited. The Court of Appeal sidestepped this question and ordered that spousal support be payable for ten years. It would have been interesting if the Court had attempted to count or estimate the number of days the parties had actually spent under the same roof, and ordered support based on that time period alone. Perhaps 4 or 5 years of support would have been ordered under that approach.
The decision in Latner provides an important precedent for the proposition that romantic couples need not physically live together or have children to claim for spousal support at the end of the relationship. If there is significant and ongoing financial support during the relationship, the parties present as a couple, and they spent any amount of time under the same roof, they could be found to have been “living together in a family relationship”. Given the amounts at issue, it is likely that one of the parties will seek leave to appeal to the Supreme Court of Canada. Stay tuned for future developments.