Ottawa Citizen
Saturday, October 26, 2002

Infidelity might get expensive

Cristin Schmitz
The Ottawa Citizen

Married men with mistresses should check their wallets -- the price of infidelity may be going up.

In a case that could lead to illicit lovers being recognized as common-law "spouses," Ontario Superior Court Justice Peter Howden recently gave Margo Sturgess of Barrie, Ont., the green light to appeal the dismissal of her novel action for spousal support against her married ex-lover, William James Shaw of Orillia, Ont.

Mr. Shaw, 60, still lives with his wife of 29 years, with whom he has two adult children. He had a secret affair with Ms. Sturgess, 58, that ended in 2000 after two decades. Their relationship produced a daughter, now 20, for whom Mr. Shaw paid child support. In court documents, Mr. Shaw acknowledges two other "short" clandestine extramarital sexual liaisons.

Ms. Sturgess's bid for temporary spousal support was blown away last May after a judge held that the pair's frequent trysts for sex and companionship in hotels, her house and his cottage did not qualify as "cohabiting" since they maintained separate residences, finances and social lives and did not go out as a couple in the community.

That torpedoed Ms. Sturgess's case because in order to qualify to sue Mr. Shaw for spousal support as his common-law "spouse," she had to prove they "cohabited." All provinces require unmarried couples to cohabit before they are deemed to be spouses.

In a ruling reported in next week's edition of the Lawyers Weekly, Judge Howden granted Ms. Sturgess permission to appeal her case to a three-judge panel in Ontario's Divisional Court. The appeal will likely be heard in March. The public and the courts need "objective guidance" and "more clearly ascertainable and consistent principles" for determining what "cohabiting" means, the judge ruled. He suggested that "the significance of a child or children should be a primary element in the analysis."

Ontario's Family Law Act states two ways unmarried couples can be found to be spouses: if they cohabit continuously for at least three years; or, if they are the parents of a child, if they "cohabited in a relationship of some permanence."

Mr. Shaw's lawyer, Michael M. Miller of Orillia, said if the Divisional Court permits Ms. Sturgess to proceed to trial with her request for $3,000-a-month support it could open the door to spousal support claims from a variety of extramarital relationships that have never before attracted such obligations.

"The affair may be of some permanence, but is that cohabiting?" Mr. Miller said. "A woman makes a decision to have an affair with a married man. Does she not assume any responsibility for having done it, or does it all fall on his shoulders? The man in this case paid child support. That would mean that everybody who has an affair, has a child, comes up to the plate and pays child support, is now developing some kind of spousal support obligation -- all of a sudden you get a spouse because you get a child."

Mr. Shaw, a jeweler with his own store, paid monthly child support of $500, increasing to $1,000 in recent years.

Ms. Sturgess's lawyer, Elliot Birnboim of Toronto, said his client, who is in ill health and struggling to support herself, raised the pair's daughter virtually alone. He said her career as a nurse and her ability to support herself were hurt by the demands of caring for the child, who had several serious health crises.

"Case law is clear that a common residence is not a prerequisite to spousal status," Mr. Birnboim said. "This was not a one-night stand. There was an ongoing sexual relationship and more over a 20-year period subsequent to the child being born. There is a whole different standard for determining if someone is a spouse if they have a child together."

Some factors that courts have looked at to decide whether unmarried pairs were cohabiting include whether the two people slept together; resided together; engaged in sexual relations; had mutual expectations of fidelity; helped each other during illnesses; shared finances; shared housework; shared a social life; and were seen as a couple in the community.

Ms. Sturgess and Mr. Shaw paint quite different portraits of their time together. Mr. Shaw describes it as "an on-and-off love affair" and states he continued to have sexual relations with his wife, while Ms. Sturgess dated other men.

Ms. Sturgess states she was faithful to Mr. Shaw and claims he told her he slept alone in a room with the family dog. They disagree over how frequently they spoke on the telephone, socialized with other couples and how much personal financial interaction they had over the years.

The judge who held last spring that Ms. Sturgess did not have the standing to sue as a "spouse" found that the pair "spent considerable time together." But "it does not appear that either the people in their communities, or the parties themselves, considered themselves as spouses or as a couple who were living together," he wrote.

© Copyright 2002 The Ottawa Citizen