“Spousal” Connections and Sexual Connections in Family Law

Later this year, the Supreme Court of Canada (“SCC”) will hear arguments in the companion cases Kerr v Baranow, 2009 BCCA 111 and Vanasse v Seguin, 2009 ONCA 595. Both concern the rules for allocating spousal support between separated common law partners. While I do not expect the cases to add much beyond a gloss on an already robust line of jurisprudence in the area, their fact patterns pique my interest by their lack of meaningful engagement with provincial definitions of the term “spouse.”

Legislative definitions of “spouse” have been expanded to include some persons cohabiting for a certain period of time, with the length of time varying between the provinces. Section 29 of Ontario’s Family Law Act, RSO 1990, c F.3 [FLA] requires continuous cohabitation for a period of not less than three years, while other statutes require shorter periods. Consistent between the provinces, however, is the cohabitation requirement, defined in s. 1(1) of the FLA as meaning “to live together in a conjugal relationship whether within or outside marriage.”

Assessing conjugality in relationships falling “outside marriage” is a notoriously difficult task. I would argue that some courts have placed undue emphasis on evidence of certain relationship characteristics in doing so, such that applications of the current regime may be – as two commentators put it – both “wrong-headed and offensive.”

Molodowich v Penttinen, 1980 CanLII 1537 (ON SC) [Molodowich] identifies seven general indicia of conjugality, cited with approval by the SCC in M v H, [1999] 2 SCR 3, which represent the prevailing wisdom on that which defines a “spousal” relationship:

(1) arrangements for shelter,
(2) arrangements for sexual and personal behaviour,
(3) arrangements for domestic services,
(4) social activities,
(5) the attitude and conduct of the community toward the couple,
(6) financial arrangements, and
(7) the attitude and conduct of the couple toward children.

No single component is determinative, and nearly all are to be assessed objectively. The Ontario Court of Appeal held in Brebric v Niksic, [2002] 60 OR (3d) 630 (ONCA), “any deleterious effects of the definition of spouse are outweighed by the advantages of having an objective standard by which individuals and the courts can determine when state-imposed support obligations and rights of action arise.” I respectfully disagree. An objective standard applied too strictly, at least with regard to common law couples’ more private activities encompassed by the Molodowich components, results in courts unfairly excluding non-traditional partners from being recognized as “spouses” for the purpose of allocating support. Such a prejudicial consequence necessarily outweighs any efficiency or certainty rationale underpinning the strict objective standard.

Perhaps the most distressing case I have come across is Brunette v Quebec, [2000] RJQ 2664 (CS), involving a 64-year-old permanently disabled woman and 54-year-old mentally ill man who shared accommodation and expenses, provided each other care and support, and were clearly interdependent despite not having a sexual relationship. The Court of Appeal held that their relationship did not give rise to support obligations because it was non-sexual, an apparently integral characteristic in an objective assessment of what it means to be a “spouse.”

In my view, such a finding is problematic. Most immediately, the court in Brunette would seem to regard the “arrangements for sexual behaviour” component of the relevant Molodowich factors as a trump over other components, including arrangements for shelter, arrangements for domestic services, financial arrangements, etc., all of which were present in the petitioners’ relationship. Molodowich does not support such a hierarchy of its conjugality components. Professors Brenda Cossman and Bruce Ryder go even further, arguing that “arrangements for sexual behaviour” are, or at least ought to be, totally irrelevant to spousal support determinations. “Taking sex into account at all is wrong-headed and offensive,” they write –

It is wrong-headed because whether a relationship has a sexual component or not bears no relation to the achievement of legitimate state objectives. It is offensive because it requires cohabitants to disclose the details of the most intimate aspects of their lives to administrators or in public proceedings.

I agree with the professors. I would add that taking sex into account is also plainly inconsiderate of the possibility that “marriage-like” relationships of functional interdependence characterized by a deep emotional connection, affection between the parties, and an incident lack of sexual intercourse may and do exist. Our laws should reflect the diverse functions of the family rather than its traditional forms.

Further, consensual sexual desire and practice are so fundamentally personal, private, and idiosyncratic that they ought not to be evaluated on an objective basis. Judges are triers of fact, not emotion. No one outside of another’s relationship is equipped to weigh that person’s motivations for engaging or not engaging in consensual sexual relations, and I believe it presumptuous for courts to decide otherwise. Attempting to objectively assess a “spousal” connection by virtue of sexual connection – or, put another way, comparing a couple’s intimate behaviours to a monolithic quasi-marital standard and passing judgment accordingly – is, in my respectful view, an error.

Rather, assessments of “spousal” connections should be broad, flexible, and conducted on a case-by-case basis. This acknowledges that relationships between cohabiting couples will vary widely. However, as courts must have some certainty that their decisions will withstand judicial scrutiny and carry precedential weight in subsequent cases with similar facts, I do not necessarily support abandoning an objective standard in weighing the other six Molodowich components, albeit with a generous allowance for subjective factors as they pertain to “social activities” and other components motivated by more personal or private considerations. At least at first rub, such a formulation of the term “spouse” seems a more inclusive alternative to the approach that has been adopted by some courts.

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