Written by Brett Shikaze
A few months ago we wrote about Alberta’s Family Property Act, and how recent changes impact unmarried couples.
One of the questions we posed at the time was “What would happen if parties maintained separate residences but continued dating?” A recent Ontario Court of Appeal Decision provides some insight. The result – things are more confusing for common-law parties moving forward.
In Climans v. Latner, 2020 ONCA 554, the parties, Mr. Latner and Ms. Climans, were in a 14-year romantic relationship. For the duration of the relationship, they maintained separate homes where each resided. They never married, nor moved in together.
During the summers they spent time together at Mr. Latner’s Muskoka cottage. During the winter they spent weekends and the occasional week-long March break together in Florida.
Although they never moved in together, they were in a committed relationship. He gave her a 7.5-carat diamond, cards and letters declaring his love for her, and called her by his last name. They celebrated the anniversary of the day they met, and other special occasions throughout the relationship. They attended extended family functions together, went out socially, and held themselves out as a couple.
Ms. Climans also became financially dependant upon Mr. Latner from early in the relationship. By November 2001, Ms. Climans quit her job to be available for Mr. Latner and did not work for the balance of the relationship. From early on, he began paying her $5,000/month and all of the expenses on her home. He also paid off her mortgage.
Ms. Climans brought an application for spousal support. The primary issue was whether she was a “spouse” pursuant to the Ontario Family Law Act.
The Ontario Family Law Act defines a spouse as follows:
29 In this Part,
“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
continuously for a period of not less than three years….
Cohabit is also defined in that Act:
1(1) “cohabit” means to live together in a conjugal relationship, whether within or outside marriage;
So why do we care in Alberta?
As set out in our prior post, the term we use in Alberta is Adult Interdependent Partner, and the definition is strikingly similar:
3(1) Subject to subsection (2), a person is the adult interdependent partner of another person if
(a) the person has lived with the other person in a relationship of interdependence
(i) for a continuous period of not less than 3 years, or
The Court considered what it meant for the parties to live together and determined that although the parties had maintained separate residences and had not moved in together, the time spent together during the summer, Ms. Climans’ time spent at Mr. Latner’s home early in the relationship, and their time spent together in Florida was sufficient for the parties to be “spouses” under the Ontario Family Law Act and that Ms. Climans was awarded spousal support.
Ultimately, Ms. Climans was entitled to receive $53,077 per month for a period of 10 years, however, both parties spent in excess of $430,000 to reach that result.
What does this mean for Albertans?
It is unclear what this means for us moving forward. Property divisions and support between Adult Interdependent Partners are both dealt with provincially, and therefore the Ontario case is not strictly binding on Alberta cases. The wording between the provincial statutes is very similar and there is a tendency to keep things congruent between the provinces, especially on support issues. Decisions from other Courts of Appeal can be very persuasive.
It remains unclear what impact Climans v. Latner will have in Alberta, but it is clear that not sharing a residence does not necessarily mean that you are not living together. A Court will take all of your circumstances into account.
HMC Lawyers are committed to protecting your rights. If you have recently separated from your common-law partner, speak to one of our family lawyers about the division of your property to ensure that you are properly protected. Call 1-800-480-3534 or contact us online to make an appointment. We represent clients primarily in Calgary and surrounding areas.