BC spousal support obligations arise if a person lived with another person in a marriage-like relationship for a continuous period of at least 2 years. Can BC spousal support be owed if the couple don’t live together for part of the relationship? That was precisely the question for the court in Roach v. Dutra, 2010 BCCA 264. In that case, both the trial judge and the BC Court of Appeal agreed that the parties lived in a marriage-like relationship despite having lived separately for extended periods during the relationship. They were “spouses” within the meaning of BC spousal support law and lump sum spousal support in the amount of $30,000 was payable.
Is cohabitation a requirement for BC spousal support obligations to arise?
I previously discussed another case in which the BC courts found that a couple who lived apart while attending university were not “spouses” under BC law. How do these two cases fit together? How is it that one couple is found to have been in a marriage-like relationship despite having lived separately for extended periods, while another couple is not?
BC spousal support obligations depend on the unique facts
These cases fit together because the BC courts recognize that each relationship is unique. When deciding if a couple are “spouses” (and hence whether BC spousal support is payable), the courts apply a flexible approach within the context of the particular relationship and make a determination as to whether the parties intended to and were living in a marriage-like relationship. There is no checklist of characteristics that will invariably be found in all marriages or marriage-like relationships. As such, mere physical separation, on its own, is not determinative.
Analysis of the facts in Roach v. Dutra
Mr. Dutra and Ms. Roach met in 1999 when he was 40 and she was 29. Each had two children from a previous relationship. They became engaged in 2000 and began living together under the same roof in 2001. Because of a strained relationship between Ms. Roach and Mr. Dutra’s daughter, they agreed that they would continue their relationship but live in separate residences. In November 2003, the parties jointly purchased another property five minutes down the road, and Ms. Roach moved there with her children. Thereafter, their relationship continued until September 2006. When the relationship ended, Ms. Roach applied for BC spousal support. Mr. Dutra acknowledged that he and Ms. Roach were living in a marriage-like relationship from 2000 to November 2003, but he denied that they were “spouses” during the period from November 2003, when the parties began living in separate residences, until their relationship ended in September 2006.
Is cohabitation necessary?
In short, Mr. Dutra took the position that, in order to qualify as a “spouse” within the meaning of BC spousal support law, not only does the parties’ relationship have to be marriage-like, but the parties also have to be living together, or, at the very least, intending to live together. The question for the court was this: Did the nature of their relationship change in November 2003 when the parties decided to live in separate residences, albeit five minutes apart?
The court engaged in a detailed analysis of all aspects of the parties’ relationship and examined a number of factors (see here for a discussion of the criteria for determining whether a relationship is “marriage-like” and the important implications that flow from such a determination with respect to entitlement to BC spousal support). The evidence showed their continuing emotional commitment to each other after they began living in separate houses in November 2003, their continuing mutual expectations of fidelity, their continuing presentation to friends and family as a couple, and their joint vacations, which all militated in favour of finding that the parties intended to continue their marriage-like relationship. Also significant was the evidence that the intention of the parties in deciding to live in separate residences was to strengthen their relationship, not to end it, or transform it into something fundamentally different than it was before.
The court recognized that the facts of this case were unusual given the period that the parties lived in separate residences before their relationship ended, but there were numerous indicia which supported the conclusion that they were, nonetheless, spouses within the meaning of BC spousal support law and that they regarded themselves as such until their relationship ended in September 2006. As a result, BC spousal support was payable.
Take home point on cohabitation and BC spousal support
When deciding if an obligation to pay spousal support has arisen, mere physical separation, on its own, is not determinative. The general purpose of the BC spousal support law is to recognize spouses who make a commitment to one another and to apportion support consequences of that commitment between them upon relationship breakdown. The legislation requires that they live in a marriage-like relationship of at least two years. However, the words “live together” in the legislation must be read in the context of the entire section. To say that all marriage-like relationships involve continuous cohabitation, and that a temporary interruption (e.g. to strengthen the relationship as in Roach v. Dutra, or for health or work reasons) in that continuous cohabitation ends a spousal relationship, is not what the legislature intended. The question of whether parties are living in a marriage-like relationship is fact-driven and depends on the individual circumstances of each case.