““Cohabit” means to live together in a conjugal relationship whether within or outside marriage.” See s. 1(1) of the FLA.
Ms. Naegels submits that parties can cohabit without living under the same roof and relies on Justice J. Blishen’s analysis in Vanesse v. Seguin, 2008 CanLII 35922 (ON SC), 2008 CarswellOnt 4265, (Ont.S.C.J.), appealed on other issues. See Kerr v. Baranow, (2011) SCC 10, (sub nom. Vanasse v. Seguin). In Vanesse, Blishen J. found that the parties had been cohabiting for approximately 14 months before they moved into the same residence. To arrive at this conclusion, she considered the decisions in Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (S.C.C.), Stephen v. Stawecki, [2006] O.J. No 2412 (Ont. C.A), M v. H, 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 and Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.).
In Hodge, the Supreme Court of Canada said cohabitation is a constituent element of a common law relationship but cohabitation is not synonymous with co-residence. “Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof.” (See paragraph 42). In keeping with Hodge, the Ontario Court of Appeal in Stephen v. Stawecki said a finding of cohabitation is not precluded by the fact that one party continues to maintain a separate residence. The court went on to say that considering the range of potential living arrangements between couples, a definitive, bright line test for cohabitation was not possible. The court in Stephen also noted that such a test would be inconsistent with the flexible approach taken in M v. H, 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, paragraph 60.
In Molodowich v. Penttinen (1980),1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) the court listed several factors to consider when determining whether parties are cohabiting or not. The shelter arrangements made by the parties is but one factor. The others include their sexual and personal behaviour, the services provided to one another, their social activities, the perception of the community, the economic ties and supports between them, and whether there are children. There can be many elements in each general category. The factors identified in Molodowich have been referred to in many cases over the past four decades including the Supreme Court of Canada’s decision in M.v. H. The factors also received implicit approval in Hodge.
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The decision in Hodge v. Canada (Minister of Human Resources Development), also addressed when a common law relationship ends. The court said, “a common law relationship ends when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one.”[emphasis added].
Consideration of the Molodowich factors is also relevant to determining the date of separation.”
Naegels v. Robillard, 2019 ONSC 2662 (CanLII) at 22-25 & 37-38