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Are You Entitled To Spousal Support At The End Of A “Marriage-Like” Relationship?

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  • Are You Entitled To Spousal Support At The End Of A “Marriage-Like” Relationship?

Are you entitled to spousal support even if you were not married? The answer is yes: according to BC law, you are entitled to spousal support – even if you were not married – provided you lived together in a “marriage-like” relationship for a continuous period of at least two years. But what does it means to be in a “marriage-like” relationship? Marriage involves a complex group of human inter-relationships – conjugal, sexual, familial, and social as well as economic. The vast diversity of spousal relationships makes defining a “marriage-like” relationship elusive.

For many years, the courts in Canada grappled with defining what it means to be a “spouse” and expressed doubt as to whether any judge could give a completely exhaustive definition of what it means to be in a “marriage-like” relationship. The lack of a comprehensive definition made it difficult to determine whether a person would be entitled to spousal support.

Are You Entitled To Spousal Support? Consolidation of the Criteria

One of the leading cases regarding what constitutes a “marriage-like” relationship is Molodowich v. Penttinen, [1980] O.J. No. 1904 (Ont. Dist. Ct.) at para. 16, Kurisko D.C.J., which has been adopted by BC courts.  The court in Molodowich reviewed numerous decisions and consolidated the elements considered in those earlier decisions to create a list of the features of “marriage-like” relationships.  Although the following checklist of factors is not determinative of whether there is a “marriage-like” relationship, these factors are persuasive and are considered by the courts in their determinations.

  1. Shelter:
    (a) Did the parties live under the same roof?
    (b) What were the sleeping arrangements?
    (c) Did anyone else occupy or share the available accommodation?
  2. Sexual and Personal Behavior:
    (a) Did the parties have sexual relations? If not, why not?
    (b) Did they maintain an attitude of fidelity to each other?
    (c) What were their feelings toward each other?
    (d) Did they communicate on a personal level?
    (e) Did they eat their meals together?
    (f) What, if anything, did they do to assist each other with problems or during illness?
    (g) Did they buy gifts for each other on special occasions?
  3. Services:
    What was the conduct and habit of the parties in relation to:
    (a) Preparation of meals;
    (b) Washing and mending clothes;
    (c) Shopping;
    (d) Household maintenance; and
    (e) Any other domestic services?
  4. Social:
    (a) Did they participate together or separately in neighbourhood and community activities?
    (b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?
  5. Societal:
    What was the attitude and conduct of the community toward each of them as a couple?
  6. Support (economic):
    (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
    (b) What were the arrangements concerning the acquisition and ownership of property?
    (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
  7. Children:
    What was the attitude and conduct of the parties concerning children?

Applying the Criteria to Determine If You Are Entitled To Spousal Support

Kurisko D.C.J. concluded that in determining whether any pair of persons live in a marriage-like relationship, the above-noted questions should be considered, keeping in mind that no single relationship is likely to display all of the enumerated features or to manifest each to the same degree. In other words, the extent to which the different elements will be taken into account must vary with the facts and circumstances of each case.

Determining Entitlement to Spousal Support on the Facts in Molodowich

Ms. Molodowich was living in British Columbia when she met Mr. Penttinen in 1973. At his request, she moved to Ontario in 1974. At first they lived together in an apartment, and then they moved into a new house that Mr. Penttinen built for them. They lived together until 1979 when Mr. Penttinen asked her to leave. Ms. Molodowich subsequently applied for spousal support. The parties were not married and had no children. The issue was whether Ms. Molodowich was a “spouse” as defined in the family legislation in place at the time. At trial, Mr. Penttinen took the position that Ms. Molodowich was simply his tenant and that their relationship of more than five years was merely economic. He pointed to his tax returns, which indicated that he claimed rental income for the years they lived in the same house.

Kurisko D.C.J. examined the facts and circumstances of the parties’ relationship with the guidance of the series of questions listed under the seven descriptive components (discussed above) and concluded that the parties were indeed spouses living in a “marriage-like” relationship within the definition of the family legislation. The evidence indicated that the amount reported to have been paid as rent was set out in the tax returns so as to gain the best tax advantage for both parties, and in fact no such payments were ever actually made.

While overt signs of affection were uncommon, the evidence was clear that the parties were a couple and the neighbours called to testify at the trial regarded them as such. Ms. Molodowich worked outside of the home but also performed the usual work of a housewife, such as cleaning, washing, mending and sewing clothes, shopping, and making meals. She cared for Mr. Penttinen on the occasions when he was ill and assisted with some of the construction of the home in which they lived. When Ms. Molodowich struggled financially, Mr. Penttinen provided her with financial support. They were sexually exclusive. Mr. Penttinen travelled for competitive skiing trips on his own each year. However, they also went on other holidays together. Given all of the other factors, those independent trips could not be considered as breaking the continuity of their relationship. Given all of these factors, Ms. Molodowich was entitled to spousal support.

Take Home Point: Are You Entitled To Spousal Support?

Are you entitled to spousal support, even if you were not legally married? The answer is yes, provided you are a “spouse” as defined in the family legislation (in BC, the applicable law is the Family Law Act, [SBC 2011] c. 25). That definition requires the parties to have lived together in a “marriage-like” relationship for a continuous period of at least two years. To determine if your relationship was “marriage-like” (and thus whether you are entitled to spousal support), the court will consider the series of questions listed under the seven descriptive components set out above, taking a broad view in order to reflect the diversity of spousal relationships that exist in modern society. While no two relationships are identical and there is no “checklist” of what makes a marriage-like relationship, the factors set out above are the ones that the court will consider, to varying degrees, in all cases when determining the nature of the relationship and entitlement to spousal support.

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