COURT FILE NO.: FS-20-20499 DATE: 20220407 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ANGELIQUE ADDEO Applicant/Defendant – and – MATTHEW ELKIND Respondent/Plaintiff
Counsel: J. Moldaver and S. Yuen, for the Applicant/Defendant S. Bookman for the Respondent/Plaintiff
HEARD: March 1, 2022
Davies, J.
REASONS FOR DECISION
Overview
[1] Angelique Addeo and Matthew Elkind were in a relationship from January 2019 until late August 2020. They were never married but lived together for more than a year. After their separation, Ms. Addeo started an application for spousal support.
[2] Mr. Elkind brought this motion for a declaration that he and Ms. Addeo were not spouses and Ms. Addeo’s application for spousal support should be struck.
[3] I am not deciding whether Ms. Addeo is entitled to spousal support or the quantum and duration of any support to which she may be entitled. I am only deciding the threshold issue of whether Mr. Elkind and Ms. Addeo were spouses. The parties agree that if they were not spouses, Ms. Addeo’s claim for spousal support should be struck. If, however, they were spouses, the merits of Ms. Addeo’s claim for spousal support will be decided another day.
[4] The term “spouse” is defined in various ways in the Family Law Act. For support purposes, spouse includes three categories of people: (a) people who married, (b) people who are not married but who have cohabited continuously for a period of three years, (c) people who “have cohabited, in a relationship of some permanence, if they are the parents of a child”: Family Law Act, R.S.O. 1990, c. F.3, ss. 1(1) and 29. Because Ms. Addeo and Mr. Elkind were never married and lived together for only a year, they can only be spouses for the support purposes if they “cohabited in a relationship of some permanence”, and if “they are the parents of a child.”
[5] Mr. Elkind acknowledges that he and Ms. Addeo lived in a relationship of some permanence. But he argues they are not parents of a child because their daughter died before they separated.
[6] The only issue on this motion is the meaning of the phrase “are the parents of a child” in s. 29 of the Family Law Act (“FLA”). For the reasons that follow, I find that s. 29 of the FLA should be interpreted to mean that two people who have a child together while cohabiting in a relationship of some permanence are spouses. How long the child lived and whether the child is alive on the date of separation may be relevant to a spouse’s entitlement to receive support but are not relevant to whether the parents of the child were spouses and, therefore, entitled to make a claim for support.
[7] I find that Ms. Addeo and Mr. Elkind were spouses. Mr. Elkind’s motion is dismissed and Ms. Addeo’s application for spousal support shall proceed.
Factual Background
[8] The relevant facts are not in dispute.
[9] Ms. Addeo and Mr. Elkind started dating in January 2019. Mr. Elkind moved in with Ms. Addeo in August 2019. Mr. Elkind has a son from a prior relationship. Mr. Elkind’s son lived with him and Ms. Addeo 50 percent of the time.
[10] Ms. Addeo became pregnant in July 2019. Mr. Elkind was the father.
[11] In the fall of 2019, Ms. Addeo and Mr. Elkind signed a four-year lease on a large house in anticipation of the birth of their child. They moved into their new home in December 2019.
[12] Ms. Addeo gave birth to their daughter, Noa, on April 7, 2020 via an emergency caesarean section. Ms. Addeo experienced an asymptomatic abruption of the placenta. Noa suffered serious brain damage as a result. Three days after her birth, Noa was transferred to Sick Children’s Hospital. On April 12, 2020, when Noa was just five days old, Ms. Addeo and Mr. Elkind made the very difficult decision to remove her from life support and she passed away.
[13] After Noa’s death, Mr. Elkind proposed to Ms. Addeo. However, their relationship ended in August 2020 before they got married.
[14] Ms. Addeo suggests in her affidavit that her placental abruption and Noa’s resulting brain damage were caused by a physical altercation between her and Mr. Elkind a few days before she went into labour. The cause of Noa’s brain injury and her death are not relevant to my analysis and I have not considered that evidence in deciding this motion.
Meaning of the phrase “are the parents of a child”
[15] Mr. Elkind argues that the phrase “are the parents of a child” in s. 29 of the FLA should be interpreted to mean “are the parents of a child on the date of separation.” He argues that because Noa died before the date of separation, they do not meet the definition of spouse. Mr. Elkind also argues that spousal support is intended to address the economic needs of a parent with ongoing responsibility for raising a child and because Ms. Addeo does not have ongoing responsibilities for their daughter, she should not be considered a spouse. I disagree. In my view, Mr. Elkind’s proposed interpretation is inconsistent with both the language and purpose of s. 29 of the FLA.
[16] When interpreting s. 29 of the FLA, I must consider the words of provision "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Montreal (Ville) v. 2952-1366 Québec Inc., 2005 SCC 62 at paras. 9-12; Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 SCR 27 at para. 21.
[17] Looking first at the language of the definition of spouse in s. 29 of the FLA, it does not limit the definition of spouse to couples who have a child together on the date of separation. It defines people who cohabited “in a relationship of some permanence, if they are the parents of a child” as spouses. It does not say “if they are the parents of a child on the date of separation.” If the Legislature intended to limit the definition of spouse in that way, it would have done so explicitly.
[18] The purpose of the FLA as a whole and the purpose of the support provisions specifically also support an interpretation of s. 29 that includes in the definition of spouse two people who have a child together while cohabiting, regardless of whether the child is alive on the date of separation.
[19] The preamble to the FLA states that the purpose of the Act is to strengthen the role of families, to recognize the equal position of spouses within their relationship, to provide for the orderly and equitable settlement of affairs when a relationship ends, and to provide for mutual obligations in family relationships, including the equitable sharing of responsibility for children. Section 33(8) of the FLA articulates the purpose of spousal support specifically. Spousal support orders should:
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
[20] Spousal support is intended to equitably resolve economic disputes that arise “when intimate relationships between individuals who have been financially interdependent break down” and to alleviate the burden on the public purse by ensuring that spouses support each other to the extent possible: M. v. H., [1999] 2 SCR 3 at para. 93. Many of the cases talk about the ongoing economic impact of raising a child. For example, in Moge v. Moge, [1992] 3 SCR 813 at para. 31, the Supreme Court held that the most significant economic consequence of the breakdown of a relationship arises from the birth of children:
This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well‑being. In such situations, spousal support may be a way to compensate such economic disadvantage.
[21] The decision to have and raise children may also be the most common way that people, especially women, become economically dependent on their partner. But that is not the only way for economic interdependence to arise: M. v. H., at para. 191. And spousal support is about much more than sharing the economic burden of having and raising children. In my view, interpreting s. 29 to exclude couples who have but lose a child from the definition of spouse ignores the reality that a parent can experience significant financial consequences from the decision to have a child even if the child does not survive to the date of separation. Many of the economic disadvantages that spousal support is intended to address exist and can persist regardless of whether a child born during the relationship is alive on the date of separation. And compensating one party for the economic losses and hardships caused by the relationship and the breakdown of the relationship is the primary justification for spousal support awards: Bracklow v. Bracklow, [1999] 1 SCR 420 at para. 49.
[22] Two hypotheticals reveal the problem with limiting the definition of spouse to parties who have a child together on the date of separation.
[23] Suppose a couple have been dating for several years and become pregnant together. They move in together just before their baby is born. The baby is born healthy. The mother decides to take 12 months maternity leave. During her maternity leave, the baby is diagnosed with an aggressive form of cancer. The couple decides together the mother will not return to work after her maternity leave ends and will devote her time to caring for their sick child. The child lives another 18 months. The parents separate after the death of their child and after the mother has taken two and a half years out of the workforce to care for their child but before they had been living together for three years. If I were to accept Mr. Elkind’s position, the mother in this scenario would not be entitled to bring a claim for spousal support because she was not a parent of a child on the date of separation and they had not lived continuously together for three years. That simply cannot be. A couple who have a child together and make decisions about who will care for the child have demonstrated their mutual commitment to care for each other. The parent who leaves the work force for an extended period to care for a sick child will be financially dependent on the other parent. The fact that the child does not survive does not negate that economic interdependence or the realities of the decisions the couple made while they were together.
[24] Or suppose a couple decides to have a baby together. They learn during the pregnancy their child may have development disabilities requiring significant care after birth. The couple decides to continue the pregnancy despite the risks. They move in together and start planning for the care of their child. They decide the mother will leave her job and will care for the child for as long as necessary. The couple made decisions about the mother and baby’s health together throughout the pregnancy. Tragically, the baby only lives a few months after birth. The mother experiences serious depression following the death of their child and is unable to return to work. The father supports the mother financially as she is dealing with her own mental health issues. However, the couple breaks up before the mother is able to return to work and before they have been living together for three years. Again, if I were to accept Mr. Elkind’s interpretation of s. 29 of the Family Law Act, this mother would not be considered a spouse for the purpose of seeking support. She would bear all the costs of their joint decision to pursue a high-risk pregnancy. That result is inconsistent with the goal of equitably distributing the economic advantage and disadvantage from their relationship and its breakdown. It is also inconsistent with the parties’ intention during the relationship: they intended to create a single, interdependent family unit.
[25] These hypotheticals demonstrate that limiting the definition of spouse to couples who cohabite in a relationship of some permanence and who have a child on the date of separation ignores the fact that economic interdependence, which spousal support is intended to redress, can exist even if the couple’s child does not live to the date of separation.
[26] The parties were only able to find one decision, from the Saskatchewan Court of Queen’s Bench, that considers whether parents who lose a child should be considered parents: Molnar v. Bruton, 2013 SKQB 301. In that case, the Court was asked to interpret the definition of spouse in the Saskatchewan Family Maintenance Act, which also defines spouse to include “a person who has cohabited with another person…in a relationship of some permanence, if they are the parents of a child.” In Molnar v. Bruton, the parties lived together for just over a year. They separated when Ms. Bruton was six months pregnant with twins. Ms. Bruton and Mr. Molnar reconciled for a very short time after the twins were born and then separated permanently. The Court held that Ms. Bruton and Mr. Molnar were not spouses.
[27] The Court held that support obligations arise when parties make a choice to “enter into a relationship which either implicitly or explicitly confirms their mutual commitment.” Parents who chose to cohabit in a relationship of some permanence while they are parents have made a choice that signifies that mutual commitment to support each other. However, the Court held, at para. 28, that the same cannot be said for some other relationships:
The same cannot be said, however, if a person could become a spouse as the result of a pregnancy which results in a birth after the parties no longer cohabit. If that were the case, a party could be found to be a spouse even if cohabitation had ended before one or both of the parties was even aware that a child had been conceived. It would also produce that result if parties cohabit after the death of a child. Why would such a child be relevant to the question of whether the parents have chosen to be spouses?
[28] The Court in Molnar held that the test is not whether the parties have a child at the time the proceedings are brought. The test is whether the parties had a child when they were living together. The Court held that the phrase “are parents of a child” should be interpreted to mean “while they are parents of a child.” Because the twins were born after Ms. Bruton and Mr. Molnar stopped living together, they were not spouses for the purpose of the support provisions in the Family Maintenance Act.
[29] The decision in Molnar is not binding on me. Nonetheless, I agree that the purpose of extending the definition of spouse to unmarried couples is to include couples who have made a decision that demonstrates their mutual commitment to support one another. I also agree the phrase “are parents of a child” should be interpreted to mean that two people who have a child while living together in a relationship of some permanence are spouses.
[30] The Court’s comments in Molnar about the death of a child during a relationship are obiter dictum: they had no bearing on the outcome of the case. Molnar was about the birth of children after the parents decided to stop living together. It was not about the death of a child. The Court’s comment about parents living together after the death of their child is also not clear. On one reading, the Court is describing a scenario where two people have a child when they are not living together and start living together after their child dies. If that is what the Court meant, the fact that they had a child together may not be relevant to if they should be considered spouses for the purpose of support. If, however, the Court in Molnar was suggesting that people in a relationship of some permanence and who have a child together while they are cohabiting would cease to be spouses if that child dies, I think that analysis is inconsistent with the purpose and language of the provision and should not be followed.
Conclusion
[31] I find that Mr. Elkind and Ms. Addeo were spouses. This finding is consistent with the reality of their relationship. They decided to have a child together. They chose to live together through Ms. Addeo’s pregnancy. They signed a long-term lease and moved into a house that would accommodate their new child and Mr. Elkind’s son from his previous relationship.
[32] Mr. Elkind and Ms. Addeo’s dream of having a child came to a tragic, heartbreaking end a few days after Noa was born. The fact that Noa died a few days after her birth does not change the fact that Mr. Elkind and Ms. Addeo intended to be a family and made decisions to carry out that intent. Even after Noa’s death, they became engaged, further signaling their intention to remain a family and to mutually support each other as a family. An “after-the-fact” analysis of whether they were spouses based solely on their circumstances on the date of separation distorts the reality of the nature of their relationship and their intention to mutually support each other as a family unit.
[33] Mr. Elkind’s motion is dismissed. Ms. Addeo’s claim for spousal support can continue.
DAVIES J. Released: April 7, 2022