“I am not deciding whether Ms. Addeo is entitled to spousal support or the quantum and duration of any support to which she may be entitled. I am only deciding the threshold issue of whether Mr. Elkind and Ms. Addeo were spouses. The parties agree that if they were not spouses, Ms. Addeo’s claim for spousal support should be struck. If, however, they were spouses, the merits of Ms. Addeo’s claim for spousal support will be decided another day.
The term “spouse” is defined in various ways in the Family Law Act. For support purposes, spouse includes three categories of people: (a) people who married, (b) people who are not married but who have cohabited continuously for a period of three years, (c) people who “have cohabited, in a relationship of some permanence, if they are the parents of a child”: Family Law Act, R.S.O. 1990, c. F.3, ss. 1(1) and 29. Because Ms. Addeo and Mr. Elkind were never married and lived together for only a year, they can only be spouses for the support purposes if they “cohabited in a relationship of some permanence”, and if “they are the parents of a child.”
Mr. Elkind acknowledges that he and Ms. Addeo lived in a relationship of some permanence. But he argues they are not parents of a child because their daughter died before they separated.
The only issue on this motion is the meaning of the phrase “are the parents of a child” in s. 29 of the Family Law Act (“FLA”). For the reasons that follow, I find that s. 29 of the FLA should be interpreted to mean that two people who have a child together while cohabiting in a relationship of some permanence are spouses. How long the child lived and whether the child is alive on the date of separation may be relevant to a spouse’s entitlement to receive support but are not relevant to whether the parents of the child were spouses and, therefore, entitled to make a claim for support.
I find that Ms. Addeo and Mr. Elkind were spouses. Mr. Elkind’s motion is dismissed and Ms. Addeo’s application for spousal support shall proceed.”