What Is Continuous Cohabitation?
Family law lawyers are frequently asked what the pre-requisites are for a common-law relationship. In Alberta, common-law partners are called Adult Interdependent Partners (“AIPs”). To learn more about the legislation respecting adult interdependent relationships and the how Courts have defined AIPs, see our blog post, “How the Court Defines an Unmarried Couple”, here.
Under the Adult Interdependent Relationships Act, SA 2002, c A-4.5 (“AIRA”), one of the pre-requisites to becoming AIPs is that the couple must have lived together continuously for a period of not less than 3 years. This blog focuses on what continuously living together means. In 2008, the Court held that “continuously living together” required two parties to live together under the same roof (see Henschel Estate, 2008 ABQB 406). In recent years, the Court has taken a more flexible and modern approach in determining whether a continuous cohabitation existed between two parties. In particular, the Court has found that continuous cohabitations can exist even when the parties do not always live together under the same roof.
For example, in Rockey v Hartwell, 2016 ABQB 438, the parties lived apart for much of their 8-year relationship, as the woman had attended university for 4 years in a different city than the man. The parties would typically spend weekends and school breaks together in the man’s home. Despite the fact that the parties lived under separate roofs, and even separated for a period of time, the Court found that the parties continuously cohabited during their 8-year relationship. It was found that the parties’ separate residences were required for the woman to attend school and that this did not affect the nature of their relationship.
In order for an adult interdependent relationship to be found, some cases have suggested that there cannot be any breaks in cohabitation during the 3-year minimum period.
In Martin v Riley, 2014 ABQB 725, an alleged AIP made a claim against her partner’s estate for maintenance and support. The parties had cohabited for 22 years in a home owned by the applicant, following which the deceased constructed a separate residence in 1997. They had no children. The deceased contributed to the upkeep of both homes. Further, although the deceased stayed at the new residence overnight on occasion, he continued to spend several nights per week with the applicant in her home up until his death in 2011. The applicant’s friends gave evidence that the applicant and deceased continued to hold themselves out as a couple after 1997 and spent the night together when the friends visited the parties at the applicant’s home. The deceased’s children denied that the parties were AIPs, alleging that the applicant and deceased were merely companions after 1997.
The Court in Martin v Riley held that, at the time of the deceased’s death, the parties were AIPs and had enjoyed a relationship of interdependence of not less than 3 continuous years, despite the fact that they maintained separate residences. The court relied on Tait v. Westphal, 2013 ABQB 668, in which it was held that maintaining separate houses did not preclude finding an adult interdependent partnership. Although the parties’ relationship changed over its 36-year span to include a separate “breather place” for the deceased, that change did not impact the parties’ status as AIPs.
The most recent case in Alberta that has addressed the issue of continuous cohabitation is Wright v Lemoine, 2017 ABQB 395. In this case, the parties had a 4-year relationship, during which they lived together intermittently at trailers, hotels and at party’s home. Depending on their work schedules, the parties often lived apart – the man would reside at a hotel where he was working, and the woman would reside with her mother. In concluding that the parties were AIPs and had continuously cohabited during their relationship, the Court observed that a key factor in making such a determination is what the parties’ intentions were. The Court stated at para 46 of the decision: “Given the many ways parties structure their living arrangements, it is important to take a flexible approach and to consider the intentions of the parties in determining whether they have cohabited for the requisite period of time in order that the purpose of the AIRA is met.” Here, it was found that the parties formed in the intention to live together in 2012, and that their periods apart arose from the man’s work commitments and not the parties’ intentions to live apart.
The modern reality of today’s relationships is that couples may choose to have separate roofs for a variety of reasons, including work, school, or to have some alone space. Maintaining separate residences does not necessarily impact the level of commitment two people have toward one another. In recent years, the Court’s analysis of AIPs appears to reflect the nature and structure of modern relationships.