“The respondent and the deceased were not married. There is no dispute, however, that they were cohabiting as spouses on the date of the accident. The issue is whether they were cohabiting on May 6, 2000, three years before the accident, as required by s. 29 [of the Family Law Act]. Section 29 defines “spouse” to include couples who have “cohabited continuously for a period of not less than three years” and s. 1(1) defines “cohabit” as “live together in a conjugal relationship, whether within or outside marriage”.
The crucial finding of the trial judge was at paragraph 30 of his reasons:
The necessary intent to cohabit in a conjugal relationship was formed by the parties before May 6, 2000 although perhaps it was not documented until later. Their relationship was an exclusive one, neither party being unfaithful. They slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple and were treated as such by their friends, family and neighbours. While they may not have finalized any joint financial arrangements and continued to maintain separate residences, they lived together under the same roof.
The appellant submits that we should impose a bright line test and conclude that as the respondent had not “moved in” with the deceased as of May 6, they were not living together at that time. We disagree. In our view, “moving in” would add no precision to the meaning of “live together” and it would not provide the clear and definitive test sought by the appellant. The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible. In our view, to accept the appellant’s argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H. 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 in this area. 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 cohabiting. 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: see Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.); Thauvette v. Malyon, [1996] O.J. No. 1356 (Ont. Ct. Gen. Div.); Campell v. Szoke [2003] O.J. No. 3471 (S.C.).”