What does “Live Together” mean in Common Law Relationships?
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Jordan Lantz Associate -
Divorce Topic
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Published On
In Alberta, a common law relationship is called an Adult Interdependent Partnership (“AIP”). The test to determine whether two persons are AIPs is found in the Adult Interdependent Partnerships Act at Section 3.
In most cases, the test is in 3 parts:
Two persons who
a) live together;
b) in a relationship of interdependence;
c) for a period of not less than 3 years.
There are independent analyses to determine each stage of that test. Each portion of the test needs to be made out for an AIP relationship to exist. The recent case of Abbott v Mamdani, 2024 ABKB 342 (“Abbott”), written by Justice Gaston, has clarified the test for what “living together” means for determining whether people are AIPs or not. This case was argued successfully by Andy Hayher KC and Jordan Lantz of Hayher Lee LLP.
In Abbott, the parties were together in a romantic relationship for approximately 4 years. The Applicant claimed that the parties were AIPs notwithstanding she rented several different condos during those 4 years and the Respondent maintained his own home the entire time. The Respondent’s name was not on the lease agreement for the Applicant’s condos, nor did he stay overnight at her condos with any regularity, possibly ever. The Respondent’s home required biometric access to enter, and the Applicant was only given biometric access twice, each time only for a short period.
The Applicant argued that, while the parties never shared the same legal address, they cohabited in the sense that they both “lived together” in two separate instances. There is precedent for this position as the Court has previously found that two parties may live together in two separate residences in specific circumstances (see, for example, Desnoyers Estate v Desnoyers, 2020 ABQB 120; Rockey v Hartwell, 2016 ABQB 438; Wright v Lemoine, 2017 ABQB 395).
1. Did the parties cohabit in the same residence for a continuous three-year period?
2. If not, did the parties have a mutual intention to cohabit in the same residence for a continuous period during which the period was interrupted by external circumstances such as employment, academic, financial or healthcare obligations or requirements?
Quite obviously, the parties in Abbott did not reside in the same residence for 3 years so Justice Gaston turned to whether they had an intention to cohabit, but it was otherwise interrupted. Justice Gaston was convinced there was no mutual intention present in this case because 1) the Applicant did not have regular biometric access to the Respondent’s home; 2) there was evidence of the Respondent denying the Applicant access to his home on occasion; and 3) there were multiple communications between the parties clearly indicating that the parties did not view themselves as living together. Importantly, there was no external circumstance at play in this situation, the parties simply did not cohabit.
So, while it is not necessary for parties to continuously cohabit under the same roof for 3 years to be considered AIPs, the party alleging there was an AIP relationship must prove that the parties intended to live together but were unable to do so due to external circumstances.
Courts have previously found that valid external circumstances may include: travelling for work; working jobs with a rotating schedule such that one party is away from the home for large periods of time; sickness or other health-related reasons; travelling to attend university in a different city; or financial obligations which rendered changing homes unreasonable.
In all of the above circumstances, however, the parties must be able to produce evidence that they both wished to live together. The test to determine “lived together” has evolved to consider all of the relevant factors and not just whether the parties share the same residential address.
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