QUESTION
You asked me what I thought about a possible claim by E for spousal support and more precisely might you and she be considered spouses for spousal support purposes under Section 29 of the Family Law Act. You have a copy of that section. That questions falls to be determined by whether, given your and E’s circumstances, you and she can be considered in the words of Section 29 (b) as having “cohabited… in a relationship of some permanence, if… (you)…are the natural or adoptive parents of a child.”
MATERIAL
I have my notes of when we first meet and the brief bits of information I then got and your written answers to the questions I emailed to you derived from an Ontario case (Molodowich), and sometimes called the Molodowich test, and used often by courts in Ontario and in other provinces as well.
CONCLUSION
It is reasonable to think that if you go to court for your parenting rights, you will face E’s claim for spousal support. There is on your facts no black and white answer to the question of her entitlement. That said, I think E can make a strong argument for it based on the discussion below. The presence of a child in the analysis is the most compelling reason why, when combined with the two 5 month recent periods of actual cohabitation, your ongoing support for E and A, from the time of his birth to date, keeping them to date both on your medical plan, and her not having worked for a considerable period of time. My reading of the cases is that when children are part of the factual mix, judges will bend over backwards to fit the parties into having cohabited in a relationship of some permanence, particularly when, as appears here, one of the parties is financially dependant on the other.
DISCUSSION
You will understand that there are on your facts no black and white answers to the question as each cases turns on its own facts. But two cases present you with, and illuminate, particular problems for you.
One is Hazlewood, a 2000 case, in which the facts are in my view stronger than yours, but where the legal reasoning tells against you. It concerned a motion for temporary support, not a trial decision. In Hazlewood, the parties never married but had a weekend relationship over about seven years, while keeping separate homes. The children lived with the mother and the father would come every weekend. The parties on weekends functioned as a couple. The father named the mother a dependant on his health plan and the mother gave up a job to stay home with the children. The father kept a room in the mother’s house and had some personal effects. The father supported the mother financially throughout.
I note you had two broken periods of actual cohabitation of 5 months each starting in August 2008—August to December 2008 and August to December 2009. You have till now both A and E on your health plan. You have throughout, starting with A’s birth, July 9, 2006, supported E and A together. E does not work. She relies on what you pay her. I also note about a month or two ago--before the final separation-- E loaned you $10,000.00 when you faced a cash crunch in your business activities. You intend to repay her next month. I note as well that E has two real estate investments and is income poor but has some assets.
Justice Wildman in Hazlewood was precisely concerned with whether the parties can be said to have “cohabited”. They conceded that they had a relationship of some permanence. She states the clear law that parties may be cohabiting even when not living together. It is important to note at this point in the discussion that your issue is somewhat different because you and E have cohabited. But can you said to have had done so “in a relationship of some permanence”.
Justice Wildman then moves through the Moldowich test in application to the facts before her. She says that while each case turns on its own facts, whether there has been “continuous cohabitation” is a subjective and objective test. What do the parties feel about it? How did others see it? But here comes the problem. Her Honour says:
[18] “Although it is difficult to determine the state of mind of a couple, it is a useful concept to consider in reviewing the cases which have rejected a spousal finding based on a lack of cohabitation. In these cases, there were generally no children born of the union…”
Following on this Justice Wildman says at [37] and [38]:
[37] There are numerous other cases cited to me by both counsel which I have reviewed but do not need to comment on individually. In each of the cases in which a finding of cohabitation was not made, the Court looked at the relationship and held that there was not sufficient indicia of a quasi-marital relationship to support a finding of cohabitation. Conversely, in the cases in which a finding was made, the Court looked at the individual circumstances and decided that, in the circumstances, their relationship should be treated as one of spouses for the purposes of support. In no case was it found that continuous daily cohabitation was necessary for a finding under s. 29.
[38] One of the strongest indicia of an intention to be treated as a family is the existence of children born to the couple. When this is combined with an element of financial support by one party to the other, an altering of the roles in the relationship as a result of the birth of the children and some time spent together on a regular basis, this relationship should be considered to be "cohabitation in a relationship of some permanence" within the meaning of the Family Law Act. The amount of residence sharing which is necessary to support a spousal finding where there are children and ongoing financial support is probably less than would be required if either of these important factors were absent. Although these two criteria are not determinative of the question for all cases, their existence is very persuasive to the Court in assessing whether or not a family unit has been established.”
Commenting on these paragraphs Justice Howden in Sturgess said at [7]:
“Wildman J. in Hazlewood found the birth of a child to be ‘one of the strongest indicia’ of cohabitation of the parents. She reasoned that the presence of a child born of the relationship combined with ongoing support payments should reduce the amount of residence share necessary to support a finding of cohabitation. She described the two factors, child born of the relationship combined with provision of support payments, as "very persuasive to the court". While she indicated they may not always be determinative, clearly her approach attributed a very significant weight and value to them.”
The problem Hazlewood confronts you with then is then compounded by DeSouza, a 1999 Ontario case. It had slightly strange facts but can clearly be read to hurt you on the question of “a relationship of some permanence”. The parties had been married for three years and had two children. They divorced in 1996. In May 1998 they reconciled and the mother sold her assets and moved in with the father. She moved out in November 1998. Therefore they lived together for only 6 months. Again on motion for temporary support, Justice Schnall held the mother was a spouse under section 29 (b) of the Family Law Act. She was entitled to claim spousal support. Their cohabitation was a relationship of some permanence. And it did not matter that the parties' children had been born before the cohabitation.
Here is some bad reasoning for your position from DeSouza:
[8] “There is no issue that the parties are the natural children of the parents. There is no issue that they “cohabited” during the relevant time period. The respondent contends, however, that this short period of cohabitation does not constitute a “relationship of some permanence”; further that the reference to “children must refer to children born or conceived during this period of cohabitation, and no to children born prior to the parties’ divorce.”
[10] “A relationship of only 6 months may still be considered to be a relationship of “some permanence”. … (in) the case of Re Labbe …Judge.. Weisman found that a period of…even six weeks could support a finding that the relationship was one of “some permanence”. Where he found that the parties had discussed the possibility of marriage some day, he could not find that there was no permanence to the relationship.”
[11] “In the case before me, the parties had cohabited for about six months, there was an economic component to the relationship, the applicant had taken significant steps in changing her situation by moving and selling her assets and the parties considered themselves a “family unit”. I cannot therefore conclude that that there was no permanence in this relationship and the intended permanence, which lasted for six months (significantly longer than in the Labbe case), constitutes a relationship of some permanence.”
FINAL (PRACTICAL) POINTS
1. Please note that should E advance such a claim she will seek, I presume, by her own evidence to counter any evidentiary suggestion by you that goes against your “togetherness.”
2. I have copies of the cases I referred to and can get them to you if you want to see them.
3. Please advise if I have any important facts wrong.
4. I have not commented, because you did not ask me to and I would need more information in any event, on what order for spousal support might go against you as to duration and as to quantum.
5. The bolding is my own for emphasis.
6. Please advise if you have any comments or questions.
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