D. Support Rights and Obligations between Unmarried Cohabitants

Author:Julien D. Payne - Marilyn A. Payne

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In the common law provinces and territories, statutes confer mutual support rights and obligations on unmarried cohabitants, whether of the opposite sex or the same sex, provided that the prescribed statutory conditions are satisfied. Some statutes require that the parties cohabit or live together in a conjugal relationship for a minimum period, which usually ranges from one year to three years according to the particular province where the parties reside. Several provinces also impose support obligations upon unmarried cohabitants who have lived in a relationship of some permanence and are the natural or adoptive parents of a child.24

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In the context of provincial and territorial statutory support rights and obligations, cohabitation signifies a marriage-like relationship. Not all arrangements whereby a man and a woman live together and engage in sexual activity will suffice to trigger statutory support rights and obligations.25As was observed by Morrison JA, of the Nova Scotia Court of Appeal,

I think it would be fair to say that to establish a common-law relationship there must be some sort of stable relationship which involves not only sexual activity but a commitment between the parties. It would normally necessitate living under the same roof with shared household duties and responsibilities as well as financial support.26More specific judicial guidance as to what constitutes cohabitation or a conjugal or marriage-like relationship is found in a judgment of the Ontario District Court,27wherein Kurisko DCJ identified the following issues as relevant:

  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 Behaviour:

    (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?

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  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 towards 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 towards each of them and 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?

    These seven elements may be present in varying degrees and not all of them need exist in order for the relationship to be regarded as "spousal" or conjugal.28Similar factors were identified by Hunter J, of the Saskatchewan Court of Queen’s Bench, in Tanouye v Tanouy,29who observed:

    The authorities seem to indicate that a common-law relationship or marriage requires perhaps not all but at least a majority of the following characteristics: economic interdependence including an intention to support;

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    a commitment to the relationship, express or implied, for at least an extended period of time; sharing of a common principal residence; a common desire to make a home together and to share responsibilities in and towards that home; where applicable, shared responsibilities of child rearing; and a sexual relationship. As well, it appears that, superimposed on the relationship...

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