Relationships in the Modern Era: What Does “Cohabitating” Mean?

Tandia Wallace-Hawken

Being in a spousal relationship comes with obligations to provide in certain circumstances. Under the Family Law Act and Divorce Act, upon separation a person may apply for support from their partner in consideration of their respective conditions, means, needs, and circumstances. A surviving spouse may also be entitled to support from their deceased partner; these obligations are protected under the Wills and Succession Act, which provides that if a person dies without making adequate provisions for their surviving family member, the court may order provisions be made out of the deceased’s estate for the proper maintenance and support of that family member.

But what if you’re not married? Thankfully, legislation has adapted to meet changing social norms; non-married partners can receive the same supports as married ones, provided they meet certain requirements. Given that no two relationships are exactly the same, the Adult Interdependent Relationships Act (“The AIR Act”) lays out the criteria that partnerships need to meet to be entitled to these types of support. To start, the parties must have cohabitated in a relationship of interdependence for a continuous period of not less than 3 years. A relationship of interdependence means:

(i)   you share one another’s lives,

(ii)  you are emotionally committed to one another, and

(iii)   you function as an economic and domestic unit.

The challenge lies with applying these factors to real-world relationships. The AIR Act provides guidance for what constitutes an “economic and domestic unit”, stating that all circumstances should be taken into consideration, including exclusivity of the relationship, how household activities are distributed, contributions to their mutual well-being, financial dependence and formalized legal obligations. Sharing each other’s lives and emotional commitment are fact specific, but may be demonstrated through evidence of vacationing together, attending social events together, photographs, and holiday cards with terms of endearment. What constitutes “living together for a continuous period of not less than 3 years” is more convoluted, and its definition has expanded in recent years.

In the past, co-habitation strictly meant living together under the same residence. But co-habitation is not a “one size fits all” situation. It is not uncommon for partners to live apart for a time due to obligations or opportunities, such as work or school. Not everyone has the desire or means to live in a single-family home, so residences are more diverse. Long distance relationships, breaks in the relationship, or having multiple residences are all common occurrences in a modern relationship and can influence the legal definition of the relationship.

In the past decade, the concept of “living together” has become more flexible. The following situations have been found to meet the cohabitation criteria:

• Purchasing a trailer with the intention to live together;
• Separating for one partner to attend school;
• A pattern of shared accommodation, based on quality and length of time spent together, can qualify as a continuous period of not less than three years;
• Keeping a separate residence for employment in a different province; and
• If the parties lived together as roommates for a time, this can still qualify as cohabitation.

Put simply, the determination of an AIR must be flexible enough to take in to account the unique circumstances of the parties, and the evolution of these circumstances over time. It has been suggested that the approach should accommodate couples that intend to live together but are prevented or interrupted from doing so by external circumstances, such as employment constraints. This question of cohabitation is not itself a precondition of being in an AIR, but rather is factored into the overall analysis of if the parties are in a relationship of interdependence.

If you have questions about the legal status of your relationship and its implications, Vogel is here to help. The experienced team at Vogel LLP is available to answer your questions and to help you understand what your options are.