What is the definition of a spouse? This is one of the very interesting questions, we, as lawyers, sometimes get asked.
For example, we had the case of Kevin and Tracey. Kevin and Tracey resided with one another for 12 years. They were not married. Very shortly after they moved in together, Tracey moved down the hallway to a different bedroom. They never again shared the same bed and had separate bedrooms. Kevin said they were no longer living in a marriage-like relationship at this point and were roommates only. Tracey said she only moved her bedroom down the hall because Kevin snored, and it was the only way she could get any sleep. She said they were a typical couple in every other way.
So, what is a typical couple anyways?
Although Kevin said it was very infrequent, they both agreed that they were sexually intimate from time to time. Kevin said Tracey was a roommate with benefits. Tracey disagreed wholeheartedly. Kevin said their sexual relationship was not exclusive. Tracey disagreed.
What would a court find in this situation?
The thing is that every relationship is different. People who are in a spousal relationship may not share the same bedroom. People who are in a relationship but sleep with other people may also consider themselves as a spouse to someone. So how do we know if someone is deemed as a spouse?
If people are married, it is pretty easy. The Family Law Act considers them spouses to one another.
But what about people who live together, are unmarried and do not necessarily have a "usual" marriage-like relationship? How do we know if they fit the definition of a spouse?
What we did at Hemminger Law Group is look at various cases and ask questions about Kevin’s and Tracey’s relationship in reference to the cases that have previously been determined by the courts.
The 1980 case of Molodowich v Penttinen,  O.J. No. 1904 set out a list of questions the courts can ask to find out if someone fits the definition of a spouse.
a. Did the parties live under the same roof?
b. What were the sleeping arrangements?
c. Did anyone else occupy or share the available accommodation?
SEXUAL AND PERSONAL BEHAVIOUR:
a. Did the parties have sexual relations? If not, why not?
b. Did they maintain an attitude of fidelity to each other?
c. What were their feelings toward each other?
d. Did they communicate on a personal level?
e. Did they eat their meals together?
f. What, if anything, did they do to assist each other with problems or during illness?
g. Did they buy gifts for each other on special occasions?
What was the conduct and habit of the parties in relation to:
a. Preparation of meals,
b. Washing and mending clothes,
d. Household maintenance,
e. Any other domestic services?
a. Did they participate together or separately in neighbourhood and community activities?
b. What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
What was the attitude and conduct of the community towards each of them and as a couple?
a. What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
b. What were the arrangements concerning the acquisition and ownership of property?
c. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
b. What was the attitude and conduct of the parties concerning children?
The British Columbia Court of Appeal states that for people to fit the definition of a spouse, they do not have to qualify as such pursuant to a stringent checklist per se. Because every relationship is unique, when looking at the definition of a spouse, we need to look at the characteristics of the relationship as a whole.
Although they did not have children together, Kevin and Tracey shared meals together, holidayed together, presented as a couple at family gatherings, shared finances, grocery shopped together, etc.
When we applied the case law in Kevin and Tracey’s situation and asked questions about their circumstances and all of the factors, our analysis demonstrated that Kevin and Tracey were indeeed spouses in a marriage-like relationship. Ultimately Kevin and his lawyer agreed.
Kevin conceded that Tracey and he were spouses.
For your consultation about your family law matter, please contact us at Hemminger Law Group.