“Separation in the context of family law litigation presumes that cohabitation no longer exists. Pursuant to s. 1(1) of the Family Law Act, “cohabit” means to live together in a conjugal relationship, whether within or outside marriage. Cohabiting is something more than simply sharing the same address. Parties may not be cohabiting even if living under the same roof. Separation has been described as the point in time when either party regards the relationship as being at an end and by his or her conduct demonstrates that this is a settled intention. A much-cited case addressing the issue of cohabitation and determination of whether parties are spouses under the legislation is Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376. In that case, Kurisko J. reviewed a considerable bank of law relating to cohabitation and listed areas that he considered relevant to determining whether a spousal relationship exists. These considerations are equally important when deciding the question of whether and/or when a separation actually has occurred. Found at para. 16 of this decision, the list entails:
(1) SHELTER:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) SEXUAL AND PERSONAL BEHAVIOUR:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
(3) SERVICES:
What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(c) Shopping,
(d) Household maintenance,
(e) Any other domestic services?
(4) SOCIAL:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
(5) SOCIETAL:
What was the attitude and conduct of the community towards each of them and as a couple?
(6) SUPPORT (ECONOMIC):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) CHILDREN:
What was the attitude and conduct of the parties concerning children?”