In the M. v. H. decision, the Supreme Court adopts the list of factors that must be considered in
determining whether any two individuals are actually in a conjugal relationship from the decision of
the Ontario Court of Appeal in Moldowich v. Penttinen. They include:
• shared shelter (e.g., sleeping arrangements);
• sexual and personal behaviour (e.g., fidelity, commitment, feelings towards each other);
• services (e.g., conduct and habit with respect to the sharing of household chores)
• social activities (e.g., their attitude and conduct as a couple in the community and with their
families);
• economic support (e.g., financial arrangements, ownership of property);
• children (e.g., attitude and conduct concerning children)
• the societal perception of the two as a couple.
From the language used by the Supreme Court throughout M. v. H., it is clear that a conjugal
relationship is one of some permanence, where individuals are interdependent – financially,
socially, emotionally, and physically – where they share household and related responsibilities,
and where they have made a serious commitment to one another.
Based on this, the following characteristics should be present to some degree in all conjugal
relationships, married and unmarried:
• mutual commitment to a shared life;
• exclusive – cannot be in more than one conjugal relationship at a time;
• intimate – commitment to sexual exclusivity;
• interdependent – physically, emotionally, financially, socially;
• permanent – long-term, genuine and continuing relationship;
• present themselves as a couple;
• regarded by others as a couple;
• caring for children (if there are children).
People who are dating or who are thinking about marrying or living together and establishing a
common-law relationship are NOT yet in a conjugal relationship, nor are people who want to live
together to “try out” their relationship.
Persons in a conjugal relationship have made a significant commitment to one another. A married
couple makes the commitment publicly at a specific point in time via their marriage vows and
ceremony, and the marriage certificate and registration is a record of that commitment. In a
common-law or conjugal partner relationship, there is not necessarily a single point in time at
which a commitment is made, and there is no one legal document attesting to the commitment.
Instead, there is the passage of time together, the building of intimacy and emotional ties and the
accumulation of other types of evidence, such as naming one another as beneficiaries of
insurance policies or estates, joint ownership of possessions, joint decision-making with
consequences for one partner affecting the other, and financial support of one another (joint
OP 2 Processing Members of the Family Class
2006-11-14 21
expenses or sharing of income, etc. When taken together, these facts indicate that the couple has
come to a similar point as that of a married couple – there is significant commitment and mutual
interdependence in a monogamous relationship of some permanence.
You have to come with convincing arguments and documents to show that you are in such a relationship.
I feel for you Zadel..
