What makes a spouse?

Can two people who have never lived together be considered legal spouses? What does living together mean? These and similar questions can arise in the context of a spousal support claim by one person when the other person argues that the two of them were not spouses.

 Answering these questions is not as simple as looking for a marriage certificate. In family law, most of it governed by provincial legislation, the definition of spouse can include people who are not married to one another but who live in a marriage-like relationship. (The one federal law that deals with family law issues, the Divorce Act, applies only to legally married spouses.)

In Ontario, for example, the Family Law Act, section 29, defines spouse, for the purpose of spousal support, as two people who are legally married as well as either of two people who are not married to each other but have “cohabited continuously for a period of not less than three years or are in a relationship of some permanence, if they are the parents of a child.”

British Columbia’s Family Law Act section 3(1) requires that, for spousal support rights and obligations to arise, two people must have lived together “in a marriage-like relationship” for a continuous period of two years or have had a child together.

Making the connection

Before tackling the question of who is a spouse, it’s important to understand the circumstances in which spousal support is to be paid. While the legislative wording varies somewhat from one jurisdiction to another, the general principle is the same: spousal support is intended to assist each spouse in becoming financially independent, to the extent that is possible.

In applying this principle, the court considers a number of factors:

  • the length of the relationship
  • the roles each spouse played during and after the relationship
  • the impact of those roles on each spouse’s ability to generate income
  • the ages of the spouses
  • the present and potential earning capacity of each spouse

Put briefly, someone whose employment was not affected in any way by the roles they played in the relationship is not likely to receive spousal support, but someone who left the workforce to raise the children and/or to assist with and support the spouse’s career is. There has to be a connection between the ability of the spouse seeking spousal support to earn a living and what they did during the relationship.

How much support and for how long it is to be paid is figured out once eligibility has been determined: spousal support can be time-limited or permanent and can stay at a constant level or reduce over time.

More than sharing a house

A 2019 Ontario case examined in detail the question of what makes a spousal relationship. Lisa Climans and Michael Latner were in a relationship with one another for 14 years. When they separated, Climans sought spousal support from Latner, whose annual income was in excess of $6.5 million. He took the position that they were not spouses as defined in the legislation.

There was considerable evidence that the two were spouses as defined by the Family Law Act, even though they maintained separate primary residences. Climans was treated as a wife by Latner; he gave her, at different times in their relationship, an engagement ring, a wedding band and an eternity band; they celebrated their anniversary every year, and she listed him as her husband on her passport.

Latner claimed that Climans was a travel companion and girlfriend, but “nothing more.”

Justice Shore concluded that there was a spousal relationship and that Climans was owed spousal support. She noted, finding Climans’ overall evidence more credible than Latner’s, that:

  • The two parties were in a committed relationship that included sexual activity
  • When Latner was ill, he called Climans to take him to the hospital
  • Climans gave up her own employment at Latner’s request so she could be available to him when he needed/wanted her
  • He covered her living expenses during their relationship
  • He paid off the mortgage on her home
  • They were viewed by others as a couple
  • While they did not live together in Toronto, they spent several months together each year at Latner’s summer home and travelling
  • They communicated with one another regularly throughout the day

“I find that Ms Climans and Mr. Latner were spouses for the purpose of spousal support having regard to all the factors. The dynamic of their relationship was such that all of the elements were present to some degree or another, but when viewed all together, lead to the conclusion that they were spouses.”

She awarded spousal support based on the length of the relationship, the couple’s lavish lifestyle, Climans’ financial dependency on Latner and the fact that she did not have the ability to support herself given her age and time out of the workforce.

What about an online relationship?

A case currently underway in British Columbia will attempt to answer the question:

“Can a secret relationship that began online and never moved into the physical world be like a marriage?”

Vikki Hui Xin Han has made a claim for spousal support against Ogyen Thinley Dorje, one of Buddhism’s holiest figures. She contends that she met Dorje only four times, two of them at public events. According to Han, during their third encounter, Dorje raped her, and their fourth encounter was a meeting in which she told him she was pregnant as a result of the rape.

Despite this start, Han says that the relationship evolved into one of love and affection, played out through text messages, emails and telephone calls, but no further in-person contact. She also says that Dorje gave her substantial gifts of money, totalling close to $1 million, so she could buy a home and a wedding ring.

Dorje denies there was a romantic relationship and says that any support – emotional or financial – that he provided was strictly for the child.

Master Bruce Elwood of the B.C. Supreme Court, in granting Han’s application to seek spousal support, noted that her application was unusual and “may even be weak.”

However, as he wrote:

“the traditional factors are not a mandatory check-list that confines the ‘elastic’ concept of a marriage-like relationship. And if the COVID pandemic has taught us nothing else, it is that real relationships can form, blossom and end in virtual worlds. . . . The parties appear to have expressed care and affection for one another in [their] communications.”

Dorje allegedly wrote to Han at some point after the baby’s birth in 2018 that “taking care of her [the baby] and you are my duty for life.”

Unlike in the Ontario case, Dorje and Han never spent physical time together after she told him she was pregnant, never had consensual sex, were not seen by others as a couple, did not share domestic chores or life in any way and did not intend to have a child. In fact, Dorje has never seen the child.

However, wrote Master Elwood:

“A trial judge may find on the facts alleged by Ms Han that the parties loved one another and would have lived together, but were unable to do so because of Mr. Dorje’s religious duties and nomadic lifestyle.”

Just as the nature of intimate relationships shifts over time, so family law and courts continue to evolve in their understanding of what makes a marriage-like relationship in terms of post-relationship rights and obligations.

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