According to a recent Statistics Canada report, 7.4% of adults 20 years old or older are in a relationship without sharing the same dwelling.  The report refers to these people as “living apart together” or LAT couples.  The report defines a LAT as being someone “in an intimate relationship with someone living in another dwelling”.

The number is down slightly from the 2001 statistic. In 2001, 8.4% of people 20 or over reported themselves as being part of a LAT couple.

Most of these couples were not married.  In 2011, only 0.9% of people 20 or over reported being married but living apart.

Most LATs were younger.  More than half were under the age of 30.

What is the effect of living apart together on succession rights?  Clearly, LATs can provide for each other by making a Will.  On an intestacy, if the LATs were married, the surviving spouse would have inheritance rights on an intestacy.

Where things get questionable is where the LATs are not married.  The surviving LAT partner may have a claim for dependant support under the Succession Law Reform Act.  Under the Act, the court may make an order for support of a dependant where the deceased did not make adequate provision for the proper support of his or her dependants.  A “dependant” includes a spouse to whom the deceased was providing support, or was under a legal obligation to provide support.  “Spouse” is defined as including either of two persons who are not married to each other, and have “cohabited”, either continuously for a period of not less than three years, or in a relationship of some permanence, if they are the parents of a child.

Courts have held in various decisions that the determination of whether parties are “spouses” is highly fact reliant.  However, there is clear jurisprudence that LATs can, in certain circumstances, be considered spouses for purposes of dependant support.  In Stephen v. Stawecki, 2006 CarswellOnt 3653, the Court of Appeal stated that “We agree with the respondent that the jurisprudence interprets “live together in a conjugal relationship” as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabitating.  The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship.”  The Court of Appeal cites the decision of Molodowich v. Penttinen, an oft-cited decision which sets out various factors to be considered by the court in determining whether there is cohabitation. Cohabitation is only one of many factors to be considered.  More to the point, in Campbell v. Szoke, [2003] O.J. 3471, Karakatsanis J. stated: “The fact that the parties maintain separate residences does not prevent the finding of cohabitation.” 

Have a great weekend.

Paul Trudelle