Cohabitation is a term frequently discussed in family law, but why is it important? What does it really mean?

In Canadian law, there are certain rights and obligations that are afforded to those who are married. However, couples who have been “cohabiting” for three years or more or have been cohabiting for less than three years but have a child together, have various rights and obligations under the Family Law Act. Couples who fall under these definitions are considered “common law” spouses.

One of the critical rights of a common law spouse under the Family Law Act is the entitlement to spousal support.

Even in cases involving married couples, the courts will consider how long the couple “cohabited” rather than how long they were married to calculate spousal support. A long cohabitation period may mean a longer period of spousal support entitlement. The most common way to show marriage break down in Canada is to live separate and apart, essentially meaning that you and your former spouse are no longer cohabiting without a reasonable prospect of resuming cohabitation.

Cohabitation can seem like a complex idea, because two people can cohabit even though they maintain separate homes, and some couples who live in the same house may not been considered to be cohabiting in the eyes of the court.

Courts will consider whether the partners share meals together, sleep in the same bed, share household tasks, care for each other when one is sick, exchange gifts, and integrate their finances. How they are perceived by others is also a consideration – how do they act in public? Do their friends and family perceive them to be a couple?

It is also quite common for separated married couples to be living together in the matrimonial home, but no longer be cohabiting. This can mean that one spouse moves into the guest room and both spouses carry separate social and private lives, but for the parenting purposes or financial reasons choose to stay in the home.

To conclude, the term “to cohabit” means more than just simply living together. There are a range of factors that a court will consider, from how long the couple has been integrated to how the relationship is being perceived by a third party. I hope you are feeling more informed about the topic of cohabitation.

If you have any questions or would like to speak with one of our lawyers about this topic, please call 905-581-7222 to book a free initial consultation.