CANADA Trends and Developments Contributed by: Ian Hull, Suzana Popovic-Montag and Nick Esterbauer, Hull & Hull LLP
prescribed period varies from one to three years, and can be abridged in most jurisdictions if the deceased and the applicant had a child together, so long as they were in a relationship of some permanence. To determine whether a relationship is conjugal in nature, courts often rely upon factors articulated by the Ontario High Court of Justice in Molodowich v Penttinen , 1980 CanLII 1537, including: • the parties’ living arrangements, sexual and per - sonal relationship, domestic services and social activities; • the public presentation of the relationship; • financial arrangements; and • the existence of children. No single factor is determinative when deciding whether the deceased and an applicant were in a con - jugal relationship, nor must every factor be satisfied. Rather, courts must undertake a holistic assessment of the relationship, recognising that modern intimate partnerships may not conform to traditional expecta - tions. It also merits noting that the legislation in one prov - ince – Alberta – does not require the applicant to have been in a conjugal relationship with the deceased in order to obtain support from their estate: rather than limit support to common-law spouses, the legislative scheme permits applications to be made by individu - als living in relationships of interdependence with the deceased. To date, no other jurisdiction in Canada has broadened the class of individuals who may seek support in a similar fashion. Cohabitation may not require the parties to share a residence Recent appellate decisions demonstrate an increas - ingly flexible approach to the statutory requirement that spouses must cohabit, recognising that contem - porary relationships do not always involve continuous residence under only one roof. For example, in Climans v Latner , 2020 ONCA 554, the Ontario Court of Appeal held that lack of a shared residence was not determinative of whether the par - ties were spouses, and that parties may be found
to cohabit despite only living together intermittently. Similarly, in Somers Estate ( Re ), 2025 ABCA 372, the Alberta Court of Appeal recognised that parties who maintained separate residences were in an adult inter - dependent relationship. Drawing upon the Supreme Court of Canada’s decision in Hodge v Canada ( Minis- ter of Human Resources Development ), 2004 SCC 65, the Alberta Court of Appeal affirmed that cohabitation is not necessarily synonymous with co-residence, as “[t]wo 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”. A similar approach was also adopted in the Northwest Territories in Estate of Bourque , 2025 NWTSC 70. In this case, the applicant and the deceased had main - tained a committed relationship for more than two decades, but only shared a residence for less than two years. The court found that they were spouses, recognising that the analysis requires consideration of the parties’ relationship as a whole and that their deci - sion not to share a residence sooner did not define or limit their relationship. However, the courts may also find that a couple were not in a common-law relationship if they chose to maintain separate residences prior to the death of one party. For example, in Shukin v Loeffler Estate , 2025 SKCA 73, the Saskatchewan Court of Appeal upheld the trial judge’s conclusion that an engaged couple were not spouses for the purpose of determin - ing entitlement to dependant’s relief, notwithstand - ing their long-term relationship. Both the absence of a common principal residence and the lack of economic interdependence supported this conclu - sion, again affirming the importance of examining the totality of a relationship when determining who quali - fies as a spouse under dependant’s relief legislation. The Supreme Court of Canada also recently denied leave to appeal from the Court of Appeal’s decision in Shukin : see 2026 CanLII 61954. Given that long-term couples who maintain separate residences may be recognised as common-law spous - es for the purpose of dependant’s relief, it should not be presumed that the absence of a shared home will preclude the recognition of a common-law relation -
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