Cohabiting

Justice David Little’s ruling in Stephens v. Stawecki makes it clear that, in determining whether a couple has “cohabited continuously for a period of not less than three years”, so as to make them “spouses” under s. 61 of the Family Law Act, the date on which they began to live in the same residence is only one factor to be considered. This claim arose out of a motor vehicle accident. A woman sought damages under s. 61 of the FLA , for the death of the man whom she said had been her “spouse”. The couple was not married. But s. 29 of the FLA contains an extended definition of “spouse” that includes “either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years”. Section 1(1) of the Act says that “cohabit” means “to live together in a conjugal relationship…” The accident happened on May 6, 2003 and the couple had not begun to live in the same residence until January, 2001. At first blush, it would not appear that these facts would bring the plaintiff within the FLA definition. A requirement that the couple “live together” for a period of “not less than three years” would, one might think, make the relevant date May 6, 2000 (three years before the date of the accident). But Justice Little ruled that the plaintiff had been a spouse of the deceased and was entitled to claim. He reasoned that even though the plaintiff had maintained a separate residence prior to January, 2001, the couple had “slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple and were treated as such by their friends, family and neighbours”. Justice Little assessed the plaintiff’s damages for loss of care, guidance and companionship at $70,000.

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