In the matter of Oxley v Oxley the parties separated in May 2008. In June 2009, a temporary court order was made compelling the husband to pay the wife’s court costs along with temporary spousal in the amount of $4,200.00,…
The following judgement which was released on January 20, 2011, deals with a woman’s motion for interim support arising out of her application under the Succession Law Reform Act.
According to her extensive Affidavit evidence, the woman, whom we will refer to as woman A, claimed that she was a dependent and therefore entitled to support under the provisions of the Succession Law Reform Act, based on the fact that she was involved in an 11-year relationship with the deceased which she believed was “quasi-spousal” thus rendering them akin to “common-law spouses.”
This motion is interesting because it was contested by another woman, whom we will refer to as woman B, who claimed that she was also entitled to support as a result of her long-term relationship with the deceased thus making her his common law spouse. Woman B was also appointed by the deceased as the trustee of his estate.
When determining whether or not the deceased and woman A were in fact in a common law relationship such that she would be entitled to interim support, Justice Belleghem considered the Molodowich factors which include, but are not limited to, the following:
- issues of shelter,
- sexual and personal behaviour,
- social interaction,
- societal attitudes towards them,
- economic support; and
The facts illustrated that the deceased and woman A lived together for substantial periods of time and slept under the same roof, had sexual relations, felt amorous towards one another, communicated on a personal level, ate many meals together, exchanged gifts and assisted each other with problems or during illness. The deceased and woman A prepared meals together, shopped and maintained the household jointly.
Essentially, they were treated by the community as a couple. The deceased was also the primary financial provider for woman A and he portrayed a fatherly attitude towards her children. Consequently, woman A was entitled to support.
However, the deceased also maintained a similar household with woman B and as a result woman B claimed that, to find that woman A was entitled to support, would be to suggest that the deceased was in a bigamous relationship and would affect her own claim for support.
Case law was presented to Justice Bellengham illustrating an instance where support was ordered for a dependent even where there was another lawful wife.
Additionally, Justice Bellengham stated that ordering support for woman A would not preclude woman B’s entitlement to support nor would it suggest that the deceased was in a bigamous relationship, as neither woman A nor woman B were lawfully married to him.
Therefore, Justice Bellengham stated that the onus to prove entitlement and need for interim support fell on woman A who would need to produce credible evidence to be weighed and assessed by the court and, if after the assessment the court concluded that woman A established a claim for support, then same could be ordered.
Justice Bellengham stated that after considering and weighing all the evidence, woman A could establish her claim for support and therefore was entitled to same. However, the evidence was not sufficient to entitle her to an order for support for $3,000.00 per month as she requested. Rather, Justice Bellengham was satisfied that an award of $1,500.00 per month would be appropriate.
Lastly, woman A was awarded her costs of the motion which were fixed at $3,000.00, inclusive of disbursements and tax.