Recent cases discuss factors for determining spousal status
The determination of spousal status under a pension plan can be critical for determination of entitlement to pension benefits such as pre-retirement death benefits and survivor pensions. A number of recent cases in a variety of contexts demonstrate some of the complexities that can affect these determinations of spousal status and separation.
Court finds spousal status despite intermittent cohabitation
A recent Ontario Court of Appeal decision in Climans v. Latner1 concerns the definition of “cohabitation” to determine entitlements to spousal support under section 29 of the Family Law Act, finding that unmarried partners were cohabitating despite maintaining separate residences.
Mr. Latner and Ms. Climans were in a long-term relationship for approximately 14 years, never having married or having children together. During their relationship, the couple chose to maintain their own primary residences but would live together during vacation periods, such as summers in Mr. Latner’s cottage or weekends in Florida in the winter months. Ms. Climans would also sleep over at Mr. Latner’s home on alternating weekends.
Early in their relationship, Ms. Climans quit her job and did not work again until after the relationship ended. Mr. Latner was a wealthy man and supported Ms. Climans financially by providing her and her children with a lavish lifestyle. The couple never merged their finances nor did they own property jointly. However, Mr. Latner provided Ms. Climans with substantial financial support, including a monthly income, home expenses, a credit card, and expensive gifts for her and her children. He also proposed and gave Ms. Climans an engagement ring. The couple celebrated anniversaries, supported each other during medical issues, introduced each other to their children, and attended couples counselling. Although Mr. Latner had prepared and presented various draft domestic contracts to Ms. Climans during their relationship, no domestic contract was ever signed.
The trial court determined that Mr. Latner and Ms. Climans were spouses within the meaning of the Family Law Act, and Mr. Latner was ordered to pay monthly spousal support for an indefinite duration.
In finding that the parties were spouses, the trial judge referenced a number of criteria discussed in the case law, namely “shared shelter, sexual and personal behaviour, services, social activities, economic support, children as well as the social perception of the couple.” The trial judge considered all of the elements of their relationship together to reach the conclusion that they were spouses.
The Ontario Court of Appeal dismissed Mr. Latner’s appeal of the trial judge’s decision. The Court of Appeal agreed that there have been many cases where courts had found cohabitation where the parties cohabitated only intermittently.
Determining when cohabitation commenced
A recent British Columbia case demonstrates the difficulty of determining the precise time when cohabitation begins. In Turner v. Stabeck Estate2, Ms. Turner asked the court to find that she was in a marriage-like relationship for at least two years before Mr. Stabeck’s death, in which case she would be considered the spouse under the Wills, Estates and Succession Act (WESA) and would inherit the largest portion of his estate under the intestacy rules for individuals who die without a will.
Although Ms. Turner and Mr. Stabeck maintained separate residences in different cities during their relationship, Ms. Turner had started to move her personal belongings and some of her furniture into Mr. Stabeck’s residence, with plans of making their living arrangement permanent once her caregiving duties to her grandson were no longer required. Ms. Turner also claimed that once her caregiving responsibilities to her grandson were no longer required in the summer of 2017, she moved her remaining possessions to Mr. Stabeck’s residence and continued to live and travel with him until his sudden death in September 2018.
The British Columbia Supreme Court held that the relationship between Ms. Turner and Mr. Stabeck was marriage-like for at least two years before his death, as they had mutually agreed to have an intimate and exclusive relationship of lengthy and indeterminate duration no later than September 2016. The Supreme Court confirmed that although WESA refers to people living with each other, a relationship could be “marriage-like” for purposes of the legislation even when each person maintains their own residence. In support of this position, the court listed a number of factors that may determine spousal status, such as physical residency, sexual and personal behaviour, personal affairs such as meals, personal and household maintenance, and shopping, social relations with family and the community, how others perceive the couple, economic support and children.
Impact of a period of separation
Even where a common law relationship status is established, when the parties separate for a period and get back together, measuring the period of cohabitation presents an added level of complexity. In the recent case Canada (Attorney General) v. Redman3, Ms. Redman claimed a survivor pension under the Canadian Pension Plan (CPP) following the death of her common-law partner, Mr. Johnson.
The provisions of the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP statute), require a common-law partner to cohabit with the CPP contributor for a continuous period of at least one year. Ms. Redman and Mr. Johnson began their relationship in 2012; however, in February 2016, Mr. Johnson moved out of the home he shared with Ms. Redman. The couple began cohabiting again from around July 2016 until November 3, 2016, the date of Mr. Johnson’s death.
The Appeal Division, which is responsible for appeals from the Social Security Tribunal under the CPP, found in favour of Ms. Redman’s claim, suggesting that the one year of cohabitation did not need not be immediately before the contributor’s death in order for a claimant to be considered a common law partner under the CPP. The fact that Ms. Redman had resided with Mr. Johnson in a conjugal relationship for over one year in the past, coupled with the fact that she had also resided with Mr. Johnson in such a relationship at the time of his death, were considered sufficient by the Appeal Division.
However, the Federal Court of Appeal found that the Appeal Division had misinterpreted the case law and had not performed the exercise of interpreting the CPP statute. It found that there was a lack of clarity in the case law as to whether a continuous one-year period of cohabitation must immediately precede the passing of the deceased contributor for the purposes of eligibility for a survivor’s pension under the CPP.
As a result, the Federal Court of Appeal found the Appeal Division’s decision unreasonable and remitted the matter back to the Appeal Division for determination by a different tribunal member.
The cases discussed above give some indication of the type of issues that must be considered when determining whether an individual qualifies as a spouse and when the spousal relationship commenced. Pension and benefit plan administrators are often called upon to make these determinations or assist plan members in determining whether a partner qualifies as a spouse. These determinations are fact-specific and the facts are often conflicting or ambiguous, which may necessitate the involvement of the courts in some cases.
1 2020 ONCA 554.
2 2020 BCSC 1553.
3  F.C.J. No. 1175.