Common-Law Spouse Challenges Order To Pay Spousal Support


For one reason or another, there are many couples who make lifelong commitments to each other without going through the formalities of marriage. However, not everybody is aware of the rights and obligations people in common-law relationships have for one another, including that in many ways, their rights are similar to those of married couples. For example, when a common-law separates, one of the spouses may have an obligation to pay the other spousal support should a court determine them to have actually been common-law spouses. This usually occurs when one of the spouses makes more money than the other and is ordered to help the lesser-earning spouse maintain a certain standard of living they have become accustomed to. In this week’s blog, we look at a case heard by the Court of Appeal for Ontario in which the appellant claimed she and the respondent were not common-law spouses, and that the trial judge made an error in determining they were and ordering her to pay spousal support.

Parties live together for over twenty years

The parties met while they were attending university in Nova Scotia in 1989. They became romantically involved and ended up moving to Toronto where they started living together in 1997. They eventually moved into a house purchased solely by the appellant, who had achieved significant success in her career. This contrasted with the respondent who suffered from mental health issues and had been more or less unemployed since they were together, not earning more than $10,000 in any of the years he did work. As a result of this, the appellant paid for household expenses, the mortgage, vacations, and other expenses. The court was told he did not support the appellant financially as she worked to build her career. The respondent had access to her bank account, a joint bank account, and credit cards. They presented themselves to the court as a couple.

Their relationship ended in early 2018 after the respondent was charged with assaulting the appellant. At the time, she was 49 years old, and he was 52. The respondent sought spousal support from the appellant, which led the parties to appear before the court.

Trial judge finds the parties were spouses

Following a nine-day trial, the judge determined the parties were spouses. Due to the respondent’s lack of work history and income, the trial judge ruled that some spousal support should be provided to him. However, the trial judge noted that for many years, the respondent had simply declined work he felt was “beneath him”, leaving him intentionally underemployed. He has imputed an income of $29,120 and the appellant was ordered to pay spousal support below the lowest end of the Spousal Support Advisory Guidelines. The order was retroactive to May 1, 2018, and was to be reviewed by December 31, 2025.

Appellant argues parties were not spouses

The appellant told the court that the trial judge erred in finding her and the respondent to have been spouses under the Family Law Act. The appellant’s position was that the trial judge relied on some evidence at the expense of other evidence.

The court reviewed the trial judge’s analysis and determined that she carefully reviewed all the evidence, starting with the Family Law Act, which defines a spouse as “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.” The Act defines “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage.”

The court pointed out that the trial judge had made negative assessments about the testimony provided by each of the parties. She said each of them presented evidence designed to support their position and that their version of events changed from time to time. In turning to whether they were a couple, and whether the appellant supported the respondent financially, the court looked at documents supplied by the appellant. She named him as her common-law spouse and beneficiary in important documents, including her will, powers of attorney for property and care, her life insurance, her pension plan, her group retirement savings plan, her tax returns, and her extended medical and health insurance. It was noted that the appellant had failed to disclose these documents until right before the trial.

The court also found there to have been “ample evidence” to support the respondent’s economic dependence on the appellant and his need for financial support following their separation. The appellant did not challenge the respondent’s claim that he was on disability benefits, lived in shelters, and relied on food banks. Additionally, the trial judge had awarded the respondent less than the lowest range established by the guidelines. Finally, the court also supported the trial judge’s decision to encourage the respondent to find work by imposing a timeframe in which to review the order, noting that it is not acceptable to refuse to work simply because he thinks jobs he is qualified for are beneath him. The court agreed with the trial judge’s attempt to find a middle ground between providing the respondent with enough money for “mere subsistence” and “a reasonable standard of living having regard to the lifestyle the couple enjoyed during their relationship.”

The court dismissed the appeal and made no changes to the trial judge’s orders.

Contact Johnson Miller Family Lawyers for help common law with separation or spousal support

The experienced family law lawyers at Johnson Miller Family Lawyers in Windsor understand the unique factors involved in every separation and divorce, including issues related to common-law spouses. We approach each client’s situation with their specific circumstances in mind and work towards understanding their need and goals. We are aware of the differences in property rights between married couples and those in common-law relationships and often help our clients learn what they could expect when a relationship comes to an end. To speak with an experienced lawyer, call us at 519-973-1500 or reach out to us online to schedule an initial consultation today.

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