Today’s blog was co-written by Corina Weigl, Partner at Fasken LLP.

The recent Ontario Court of Appeal (“ONCA”) decision Climans v Latner[1] (“Latner”) highlights a trap for the unwary.  For the purposes of awarding spousal support, clients may be found to be common law “spouses” despite maintaining separate residences.  The resulting implications extend beyond Ontario’s family law regime to wills and estates law.  On death, while the concept of spousal support does not exist, surviving spouses may bring a dependant support claim if clients’ estate plans do not provide them with appropriate support.  A “spouse” for purposes of determining dependent support under the Succession Law Reform Act[2] is the same definition of “spouse” for determining spousal support under the Family Law Act[3] (“FLA”).  Thus, in light of Latner, it is imperative for drafting solicitors to understand the overall character of their clients’ relationships.  Drafting solicitors may discuss with clients that relationships which intuitively may not appear as establishing common law “spouses” may in fact do so, thereby making clients’ estates vulnerable to possible dependant support claims if “spouses” are not appropriately supported.

The Distinction Between Property Law & Spousal Support Regimes & The Trap for the Unwary

Common law spouses who have cohabited for three years or more may seek spousal support in the event of separation under the FLA.  Latner is a decision respecting cohabiting spouses in the context of spousal support.  This context is distinct from that of property division.  While beyond the scope of this blog post, there is a line of Supreme Court decisions standing for the principle that cohabiting spouses are not considered the same as married spouses for the purposes of property sharing. Thus, while cohabiting spouses are excluded from rights respecting property division, they are included in Ontario’s spousal support regime.

This distinction stems from the definition of “spouse” in the FLA.  The definition of “spouse” applicable in Part I of the FLA, which governs family property, is different than that applicable in Part III, which governs spousal support. Specifically, s. 1(1) of the FLA provides (which applies to Part I of the FLA),

“spouse” means either of two persons who,

(a) are married to each other; or

(b) have entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.

Whereas, s. 29 provides that in Part III of the FLA,

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a)  continuously for a period of not less than three years, or

(b)  in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. [Emphasis added]

“Cohabit” is defined in s. 1(1) of the FLA as meaning “to live together in a conjugal relationship, whether within or outside marriage” [Emphasis added].

Based on these definitions, often clients correctly understand that to be common law spouses and thereby possibly assume financial responsibilities, they have to be cohabiting, meaning living together, with their partners.  A trap for the unwary arises if clients assume that “living together” means maintaining the same primary residence because based on Latner, maintaining separate residences does not preclude a finding of spousal support.

Climans v Latner

In Latner, Ms. Climans sought spousal support following a breakdown of her 14 year relationship with Mr. Latner.  The facts, as the ONCA stated, included,

Both had children from previous marriages. Mr. Latner was very wealthy. Early in their relationship, Mr. Latner told Ms. Climans that he would not marry her or live with her unless she first signed a domestic contract. At times, he prepared draft contracts and presented them to her but no such contract was ever signed.[4]

Mr. Latner argued that the parties never lived together and thus were not spouses under s. 29 of the FLA.  Supporting this position, Mr. Latner explained that “… Ms. Climans did not sleep over at his home with anything like the frequency that characterizes the cases relied on by the trial judge in which cohabitation was found… .”[5]

Despite always maintaining separate residences and while Mr. Latner proposed several times, the ONCA affirmed the trial judge’s findings[6] that the parties were spouses for the purpose of spousal support. The ONCA stated, “Lack of a shared residence is not determinative of the issue of cohabitation.”[7]  The ONCA found that the trial judge correctly assessed “… all of the Molodowich factors [which] must be considered in conjunction with one another when determining whether the parties cohabited… [and that] “there needs to be some element of living together under the same roof”.”[8]  The trial judge’s assessment was as follows:

They were in a long term committed relationship. Mr. Latner treated Ms. Climans as his wife. Their relationship was sexual in nature. They held themselves out as a committed couple and were perceived as a couple by their family and friends. Ms. Climans was considered family by the extended Latner family. The parties participated in social activities as a couple. Mr. Latner supported Ms. Climans financially. They travelled extensively together. They lived together at the cottage each summer.[9]

In addition, the trial judge correctly assessed whether the parties had “lived together” despite maintaining separate homes.  Such assessment focused on four factors, more specifically:

• Committed relationship: The parties were in a committed long-term relationship. They supported each other and demonstrated acts of commitment such as commitment rings and anniversary celebrations;
• Financial Arrangements: Ms. Climans had been financially dependent on Mr. Latner since early on in their relationship (despite never sharing bank accounts);
• Extended Family and Social Perception: The parties presented a clear image of being in a committed long-term relationship to family and friends. For example, they referred to each other as spouses and Ms. Climans walked down the aisle with Mr. Latner at his daughter’s wedding; and
• Living together: The parties lived together at Mr. Latner’s cottage each summer for almost the entirety of their relationship. The parties also lived together in Mr. Latner’s Florida property regularly during the winter months. In addition, at least at the beginning of their relationship, the parties resided at Mr. Latner’s home on a “regular basis” (which “regularity” the court impliedly assessed as every other weekend) and were “in the process of building a home together.”[10]

Despite analysis of four factors, the overall character of the parties’ relationship was paramount in the trial judge’s reasoning.  As the trial judge stated, “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 [including the Molodowich factors]), I conclude that they were common law spouses.”  Based on this reasoning, the ONCA dismissed Mr. Latner’s ground of appeal relating to the issue of whether the parties were “spouses” under s. 29 of the FLA.

Implications

In the context of estate planning, Latner is important to consider when discussing with clients their spousal obligations.  Clients may think that because they are not legally married or because they are not cohabiting year-round with their partners they do not have support obligations.  To avoid such trap, lawyers and advisors may wish to engage a key principle in estate planning – getting to know your client. Lawyers and advisors may wish to discuss assessing the character of clients’ romantic relationships, taking into consideration all of the factors considered in Latner.

[1] 2020 ONCA 554.

[2] R.S.O. 1990, c. S.26.

[3] RSO 1990, c F3.

[4] Supra note 1 at para. 5.

[5] Ibid at para. 53.

[6] Climans v Latner, 2019 ONSC 1311.

[7] Supra note 1 at para. 58.

[8] Ibid at para. 59.

[9] The factors were established in Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.); Ibid at para. 31.

[10] Ibid at para. 35.