Molodowich Factors in the Age of Separate Residences: Lessons from Climans v. Latner, 2020 ONCA 554

Summary

Understand how Ontario courts apply the Molodowich factors when couples maintain separate residences and what this means for your rights and obligations.

Introduction

The Ontario Court of Appeal’s decision in Climans v. Latner, 2020 ONCA 554, has sparked significant discussion among family law practitioners. At the heart of the case lies a critical question: What does it mean to “cohabit” in a conjugal relationship under the Family Law Act when partners maintain separate residences? The answer, as the court reaffirmed, is that cohabitation is not synonymous with living under the same roof full-time.

This ruling underscores the enduring relevance—and evolving interpretation—of the Molodowich factors, a set of criteria first articulated in Molodowich v. Penttinen (1980) to determine whether a relationship is “conjugal.” In today’s world of blended families, long-distance relationships, and non-traditional living arrangements, these factors remain the cornerstone of spousal status analysis. But how do they apply when partners never share a primary residence?

The Facts in Brief

In Climans v. Latner, the parties were in a committed relationship for nearly 14 years. They never married and never shared a home in Toronto, yet they spent summers together at a cottage, travelled extensively, exchanged rings, celebrated anniversaries, and presented themselves publicly as a couple. The trial judge found that these elements satisfied the definition of “spouse” under section 29 of the Family Law Act, entitling Ms. Climans to spousal support. The Court of Appeal upheld this finding, emphasizing that cohabitation does not require continuous residence under one roof.

Molodowich Factors: A Refresher

The Molodowich factors provide a flexible framework for assessing whether a relationship is conjugal. They include:

• Shelter – Did the parties live together, and if so, how often?

• Sexual and Personal Behaviour – Was there an intimate relationship and mutual commitment?

• Services – Did they share household responsibilities?

• Social – Did they present themselves publicly as a couple?

• Societal – How did family and friends perceive the relationship?

• Economic Support – Was there financial interdependence or support?

• Children – Did they share parenting responsibilities?

• Attitude and Conduct – Did they see themselves as a family unit?

These factors are not a checklist; rather, they are indicators of the overall nature of the relationship. Courts weigh them contextually, recognizing that modern relationships often defy traditional norms.

How the Court Applied Them in Climans

The Court of Appeal’s analysis illustrates that intermittent cohabitation can satisfy the test when combined with other strong indicators of commitment.

• Shelter: While the parties maintained separate homes, they spent summers together at a cottage and travelled extensively.

• Social and Societal: They exchanged rings, celebrated anniversaries, and were perceived by friends and family as a couple.

• Economic Support: Mr. Latner provided significant financial support, including gifts and covering expenses.

• Attitude and Conduct: Their behaviour reflected a long-term, committed partnership.

The absence of shared parenting or continuous co-residence did not outweigh these factors. The court emphasized that the essence of cohabitation lies in the quality of the relationship, not the quantity of time spent under one roof.

Implications for Modern Relationships

This case signals a broader trend: courts are adapting the Molodowich framework to reflect contemporary realities. Many couples today maintain separate residences for work, family, or personal reasons. Others prioritize financial independence while still sharing emotional and social lives. The law recognizes that these arrangements can still constitute a conjugal relationship.

For family law practitioners, this means:

• Advising clients early: Couples who believe separate residences shield them from spousal obligations may be mistaken.

• Gathering evidence beyond cohabitation: Photos, travel records, financial statements, and testimony about public presentation can be critical.

• Considering risk in high-net-worth relationships: Significant financial support and lifestyle integration can tip the scales toward spousal status.

For those affected or who will be affected by the Molodowich Factors, the best way to avoid surprises is to plan ahead. A family lawyer can help you draft agreements that clarify your intentions and protect your assets. Whether you’re starting a relationship or already in one, proactive steps can save you stress and money later.

Should the Molodowich Factors Evolve?

While the factors remain useful, Climans v. Latner raises the question: Do they need updating for the digital age? Today, emotional intimacy and shared life can occur virtually. Couples may maintain separate homes yet share finances, social circles, and even parenting responsibilities remotely. Courts will likely continue to interpret these factors flexibly, but legislative clarity could help reduce uncertainty. Until then, protect yourself with a cohabitation agreement and clear financial boundaries.

Conclusion

Climans v. Latner reinforces that cohabitation is about the substance of the relationship, not its logistics. The Molodowich factors remain the guiding framework, but their application is increasingly nuanced. For lawyers and clients alike, the takeaway is clear: separate residences do not guarantee separation from spousal obligations.

Call to Action

Have questions about how these principles apply to your situation? Contact our office for a consultation on spousal support and relationship status under Ontario law.