In the modern era, it seems that marriage is becoming a formality to many. Indeed, many rights that used to belong exclusively to married couples are now available to unmarried ones, either through legislation or the common law.
In an attempt to assert their rights, many unmarried individuals in long-term relationships often declare themselves to be in a “common law relationship.” This was particularly true in the gay and lesbian communities before same-sex marriages were legalized in Canada.
However, legally, not all long-term relationships qualify as common-law spousal relationships.
In the often-cited case Molodowich v. Penttinen (1980), 17 RFL (2d) 376 (Ont. Dist. Ct.), the court set out seven areas in assessing whether two people who were not married to each other could be defined as spouses:
- shelter (Do they live together?)
- sexual and personal behaviour (Do they have close personal connection between each other?)
- household management and services (Do they share household duties?)
- social and family activities (Do they participate together in community and family events?)
- societal (Are they viewed as a couple by others?)
- economic support (What are the financial arrangements between them?)
- children (Are they raising children together?)
According to the categories above, the presence (or absence) of a sexual relationship is not the sole determining factor when it comes to the definition of a couple. Rather, the court would take a functional approach in determining whether two people could be defined as a couple for family law purposes.
For example, two individuals who casually date each other would likely not be deemed a couple, since they don’t share a residence together, nor provide household services for each other. On the other hand, two seniors (pardon my stereotypical example) who live together may qualify as spouses even if they don’t have sex with each other.
