Woman called man common law spouse in legal documents
The Ontario Court of Appeal has rejected a woman’s argument that she was only friends and roommates with a man on the basis that, in important documents, she had consistently named him as her common law spouse and beneficiary.
In Boudreau v. Jakobsen, 2021 ONCA 511, the parties, while never marrying or having children, lived together in the appellant’s house, cared for dogs, and represented themselves as a couple to the public. The appellant paid for the expenses, including the mortgage, household and vacations, and gave the respondent financial support and access to her bank and credit cards. The respondent, who had mental health issues, was mainly unemployed. The parties ended their relationship in 2018 after the respondent was charged with assaulting the appellant.
The Superior Court of Justice of Ontario, determining that the parties were common law spouses, required the appellant to pay the respondent retroactive and ongoing spousal support in an amount below the lowest end of the Spousal Support Advisory Guidelines.
The Court of Appeal for Ontario dismissed the appeal. It found no palpable and overriding error in the trial judge’s conclusion, on the questions of fact and mixed fact and law, that the parties were spouses, under s. 29 of the Family Law Act, R.S.O. 1990, c. F.3, who had lived together in a conjugal relationship for over two decades.
The appellant had called the respondent her common law spouse, beneficiary or dependant in her will, powers of attorney for property and care, life insurance policy, pension plan, group retirement savings plan, extended medical and health insurance and income tax returns. On cross-examination, she also admitted that she had dubbed the respondent her common law spouse in her will and powers of attorney because she felt that he was.
It was reasonable and necessary for the trial judge to look at the documentary evidence to help her make her decision, given that she had found serious credibility and reliability issues on the part of both parties, the appellate court said.
The appellate court then found that the trial judge incorrectly referenced only the statutory criteria in s. 15.2(6) of the Divorce Act, which do not apply to common law spouses, instead of relying on the factors under ss. 33(8) and (9) of the Family Law Act, but this error was not so material that it would undermine the trial judge’s conclusion. The appellate court noted the significant overlap between the Divorce Act and the Family Law Act criteria. Both promote economic self‑sufficiency within a reasonable period.
The trial judge at least considered the relevant factors in deciding whether to award spousal support, including the appellant’s income and the respondent’s lack of contributions and work effort, mental health issues and diminished resources, said the appellate court.
The appellate court also found that the trial judge’s spousal support award, being in the lowest range of the Spousal Support Advisory Guidelines, was not so high that it would justify its intervention.
