The recent decision in Climans v Latner (2019 ONSC 1311) looks at whether a couple are deemed to be in a conjugal relationship for the purpose of awarding spousal support.
In Climans v Latner, Ms. Climans sought spousal support from Mr. Latner. The parties started their relationship in 2011 and separated in 2015 after being together for 14 years. The parties always maintained two separate residences in Toronto and never got married. However, the parties stayed together whenever they travelled outside of Toronto including their stays at the cottages, Florida condo, or vacation destinations. This case dealt with the issue of whether the parties were in a conjugal relationship for the purpose of Part III of the Family Law Act, considering that the parties maintained separate residences. The judge found that spousal and conjugal relationship existed in this case.
The Supreme Court of Canada sets out a non-exhaustive list of criteria to be considered in determining whether a conjugal relationship exists. Elements to consider include: shared shelter, sexual, personal behavior services, social activities, economic support and children as well as the societal perception of the couple. It has been recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be conjugal. Therefore, each case is fact specific and all the factors will be considered. The fact that the parties maintain separate residences does not automatically prevent the finding of cohabitation by the court. The court will look at all circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one’s children. For instance, in a case where the couple lived together only on weekends, it was still found that they were cohabiting. Determining a couple has cohabited continuously is both a subjective and objective test and the intentions of the parties are of huge significance. Continuous cohabitation can be found in cases where there is a long period of companionship and commitment and an acceptance by all who knew the parties as a couple. The specific arrangements made for shelter are only one of several factors in assessing whether or not the parties are cohabiting.
The court indicated that there is a clear difference between the relationship of couples that are not found to be spouses and those relationships that are one. In such cases, in addition to maintaining separate residences, the parties did not: provide financial support, merge any part of their financial lives, perform any domestic services for one another, participate in neighborhood or community activities together, inform their families that they were in a committed relationship, travel together or sleep at each other’s houses except on very exceptional instances.
In Climans v Latner, the judge found that the parties were in a committed relationship which was evidenced by having exchanged rings; an expression of deep commitment and the expectation of Ms. Climans to be available to run errands for Mr. Latner. Moreover, Mr. Latner paid for Ms. Climans expenses for the entirety of the relationship and created a financial dependency. Both parties were treated as family by each other’s extended family, celebrated all holidays and milestones together, and held themselves out as a couple in a long term committed relationship in the eyes of both their friends and family. As for the living arrangements, they spent all summer at a cottage for almost the entire 14 years, as well as residing at each other’s place on a regular basis. They were also in the process of building a home together, indicating the parties intention and the nature of their conjugal relationship.