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1. Sanderson and Russell, 24 O.R. (2d) 429

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 Sanderson and Russell, 24 O.R. (2d) 429
Ontario Reports

ONTARIO
COURT OF APPEAL
ARNUP, DUBIN AND MORDEN, JJ.A.
24TH MAY 1979.

24 O.R. (2d) 429 | 99 D.L.R. (3d) 713

Case Summary

Family law — Support obligations — Common law relationship — "Spouse" defined in legislation as
including man and woman not being married to each other who have cohabited continuously for period of
not less than five years — Meaning of continuous cohabitation for not less than five years — Family Law
Reform Act, 1978 (Ont.), c. 2, s. 14(b)(i).

Family law — Support obligations — Legislation recognizing common law relationship — Retroactivity —
Whether cohabitation period of five years completed before enactment of statute may be used to support
finding of spousal relationship as defined in Act — Family Law Reform Act, 1978 (Ont.), c. 2, s. 14(b)(i).

The respondent and the appellant, who were not married to each other, lived together as husband and wife from
July of 1971 to May of 1977, except for a four- or five-day period where the appellant moved out of the house the
parties were living in. On appeal from a judgment dismissing an appeal from an order of the Provincial Court
directing the appellant to make weekly payments to the respondent, held, the appeal should be dismissed.
The word "cohabit" as defined in the Family Law Reform Act, 1978 (Ont.), c 2, s. 1(b) is defined as meaning "to
live together in a conjugal relationship, whether within or outside marriage". While the physical separation of
parties following a disagreement might in some cases appear to amount to an ending of cohabitation, the test for
the ending of cohabitation should be realistic and flexible enough to recognize that a brief cooling-off period does
not bring the relationship to an end. It is not conduct that convincingly demonstrates a settled state of mind that
the relationship is ended. Thus the fact that the appellant left the house in which the parties lived for a brief
period of time did not interrupt a five-year cohabitation period.
Moreover, determining that the respondent was a spouse did not amount to a retroactive application of s. 14 of
the Act. That section defines "spouse" as meaning "either of a man and woman not being married to each other
who have cohabited continuously for a period of not less than five years ... and have so cohabited within the
preceding year". The Act is not retroactive merely because a woman became a spouse before the statute
became law provided that she was one at the time of the application.
Even if the Act's application be considered retrospective the appeal should be dismissed. There is nothing in the
Act to require as a condition precedent to the finding of a spousal relationship that part of the five-year period of
cohabitation must have occurred on or after the date that the Act came into force.

[Allen v. Gold Reefs of West Africa, Ltd., [1900] 1 Ch. 656; Re School Board Election for Parish of Pulborough,
[1894] 1 Q.B. 725; Society for Propagation of the Gospel etc. v. Wheeler (1814), 2 Gallison 105; The Queen v.

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Sanderson and Russell, 24 O.R. (2d) 429

Inhabitants of St. Mary, Whitechapel (1848), 12 Q.B. 120, 116 E.R. 811; Bingeman v. McLaughlin, [1978] 1 S.C.R.
548, 77 D.L.R. (3d) 25, 28 R.F.L. 58, 16 N.R. 55; Moon v. Durden (1848), 2 Ex. 22, 154 E.R. 389; Board of
Trustees of Acme Village School District No. 2296 v. Steeles-Smith, [1933] S.C.R. 47, [1933] 1 D.L.R. 545; R. v.
Vine (1875), L.R. 10 Q.B. 195; Donheim v. Irwin (1978), 6 R.F.L. (2d) 242; Barlow v. Barlow (1978), 8 R.F.L. (2d) 6;
Re Illingworth and Hyatt, [1979] 1 A.C.W.S. 274; Re Feehan and Attwells (1979), 24 O.R. (2d) 248, refd to]

APPEAL from a judgment dismissing an appeal from an order requiring the appellant to make weekly payments
to the respondent for a set period of time.

Brian Barrie, for appellant, respondent.

Paul Shaw, for respondent, applicant.

The judgment of the Court was delivered by

MORDEN, J.A.
MORDEN, J.A.:— This appeal raises two issues relating to the application of the support provisions in Part II of
the Family Law Reform Act, 1978 (Ont.), c. 2, to persons who had lived in a "common law" relationship before the
Act came into force on March 31, 1978. The essential provisions of the Act, in so far as these issues are concerned
are:

1. In this Act,

.....

(b) "cohabit" means to live together in a conjugal relationship, whether within or outside marriage;

.....

14. In this Part [Part II],

(a) "dependant" means a person to whom another has an obligation to provide support under this Part;

(b) "spouse" means a spouse as defined in section 1, and in addition includes,

(i) either of a man and woman not being married to each other who have cohabited,

1. continuously for a period of not less than five years, or

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Sanderson and Russell, 24 O.R. (2d) 429

2. in a relationship of some permanence where there is a child born of whom they are the natural parents,

and have so cohabited within the preceding year, and

(ii) either of a man and woman between whom an order for support has been made under this Part or an order
for alimony or maintenance has been made before this Part comes into force.

15. Every spouse has an obligation to provide support for himself or herself and for the other spouse, in
accordance with need, to the extent that he or she is capable of doing so.

.....

18(1) A court may, upon application, order a person to provide support for his or her dependants and determine
the amount thereof.

It is submitted by Bessie Sanderson, the respondent in this appeal, that she and Milton Russell, the appellant,
not being married to each other, lived together as husband and wife from July of 1971 to May of 1977, and that,
therefore, they "cohabited continuously for a period of not less than five years" as required by s. 14(b)(i), para. 1. It
is Mr. Russell's position that apart from a four- or five-day separation in February of 1976, there was such
cohabitation but that, because of this period of separation, there was not the requisite period of continuous
cohabitation required by the Act. This defines the first issue to be resolved.
Mrs. Sanderson made her application for support on April 28, 1978, naming Mr. Russell as respondent. It is
contended on his behalf that, even if there was at least five years' continuous cohabitation, it would be an
unwarranted retrospective application of the Act to hold that such period can be the basis of a claim by Mrs.
Sanderson. This is the second issue to be resolved.
Mrs. Sanderson's claim was allowed by His Honour Judge Morton in the Provincial Court (Family Division) of the
County of Simcoe. He ordered that Mr. Russell pay her $27.50 a week for two years and $240 for costs. Mr.
Russell's appeal from this decision under s. 36 of the Act to His Honour Judge Couture sitting in the County Court
of the County of Simcoe was dismissed. Mr. Russell appealed to this Court under s. 33 of the County Courts Act,
R.S.O. 1970, c. 94. We advised Mr. Shaw that it would not be necessary to hear from him on the issues of the
amount of support and costs. We were satisfied that there were no grounds for interfering with Judge Morton's
decision on these matters which was affirmed by Judge Couture although not dealt with in his reasons.

Was there continuous cohabitation for not less than five years?
The appellant submits that, because he had moved out of the home that he was sharing with the respondent
from a Friday to the following Tuesday in February of 1976, he did not cohabit continuously with the respondent for
a period of not less than five years. As indicated, there is no issue that, apart from this long week-end, the parties
did not cohabit for the whole of the period from July, 1971 to May, 1977.
The evidence concerning the February, 1976 interlude is sparse. The respondent said that they had had a fight
because the appellant went to a dance at a singles club and stayed to the end of it. The appellant said that he
moved out because they could not agree on anything. He moved out of the house they were living in, taking his
clothes and a small bed. He made a deposit of $100 on an apartment. At the urging of her parents the appellant
said that he went back to speak to the respondent and they reconciled.
Judge Morton described this episode as "nothing more than a temporary lovers' quarrel" which did not constitute
a break in the cohabitation. Judge Couture agreed with this conclusion.
Undoubtedly the meaning of "cohabited continuously" will be tested from different vantage-points in a great
variety of situations. "Cohabit" is defined in s. 1(b) of the Act as meaning "to live together in a conjugal relationship,
whether within or outside marriage". Put into more every-day language this means to live together as a husband

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Sanderson and Russell, 24 O.R. (2d) 429

and wife or, as His Honour Judge Honey put it in Re Feehan and Attwells, ante, p. 248, February 19, 1979, to live
together "in a 'marriage-like' relationship outside marriage". Without in any way attempting to be detailed or
comprehensive, it could be said that such a relationship has come to an end when either party regards it as being at
an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a
settled one. While the physical separation of parties following "a fight" might, in some cases, appear to amount to
an ending of cohabitation the test should be realistic and flexible enough to recognize that a brief "cooling-off"
period does not bring the relationship to an end. Such conduct does not convincingly demonstrate a settled state of
mind that the relationship is at an end.
The question will often be largely one of fact. In this case I think that the conclusion that there was no break in
the cohabitation is the correct one.
It might be mentioned that the appellant in his formal answer delivered under the Provincial Court (Family
Division) Rules, O. Reg. 210/78, disputed the respondent's claim on several grounds, but not on the ground that the
respondent was in error in alleging that they cohabited "as man and wife for a period of approximately six years ...".
While I would not hold this against the appellant, as far as being able to raise the point is concerned, it may be that
this omission casts some light on the real significance of the February, 1976 episode in the over-all relationship of
the parties.

Retrospective application?
The appellant contends that to apply ss. 15 and 18 of the Act to the facts of this case would be to give them a
retrospective application contrary to the presumption against such an application. The parties' arguments on this
issue were far-ranging and detailed. As a result of the wide variety in the facts of previous cases, the language of
the legislation, and the policies sought to be implemented thereby, it is not surprising that a uniform and simple
formula has not emerged to govern all future cases. Varying definitions of "retrospective" have been given and it
has been said that it is a "somewhat ambiguous" term: 36 Hals., 3rd ed., p. 423, referring to Allen v. Gold Reefs of
West Africa, Ltd., [1900] 1 Ch. 656 at p. 673. Further, it has been noted that "there may be some inconsistency in
judicial views concerning the nature of the presumption [against retrospective operation]": Cross, Statutory
Interpretation (1976), p. 155. These difficulties indicate that the issues presented can be approached in more than
one way.
First, it should be asked if the application of the sections to the facts of this case is a retrospective application.
The appellant refers to two definitions of retrospectivity in support of his contention that it is. First, he refers to that
of Lopes, L.J., in Re School Board Election for Parish of Pulborough, [1894] 1 Q.B. 725 at p. 737:

It is a well-recognised principle in the construction of statutes that they operate only on cases and facts which
come into existence after the statutes were passed, unless a retrospective effect is clearly intended.

Secondly, he refers to the statements in Maxwell on the Interpretation of Statutes, 12th ed. (1969), on pp. 215-6,
which include:

In the words of Craies on Statute Law, 6th ed., p. 386, a statute is retrospective "which takes away or impairs
any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a
new disability in respect to transactions or considerations already past."

It is submitted that the Act "creates a new obligation, or imposes a new duty in respect to ... considerations
already past". The "considerations", according to the appellant, are the five years' cohabitation which came to an
end in May of 1977, some 10 months before the Act came into force.
Before considering the merits of this argument it is helpful to trace the origin of the statement in Craies on Statute
Law, 6th ed. (1963), p. 386 (it is repeated in the 7th ed. (1971), at p. 387), quoted by Maxwell. Craies cites
Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law, 2nd ed. (1874) (an American
treatise), at p. 160 which, in turn, refers to Society for Propagation of the Gospel etc. v. Wheeler (1814), 2 Gallison

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105. This was a judgment of the Circuit Court of the United States in a case concerned with, among other issues,
the interpretation of a provision in the New Hampshire constitution prohibiting "retrospective laws". Mr. Justice Story
said at p. 139:

What is a retrospective law, within the true intent and meaning of this article? Is it confined to statutes, which
are enacted to take effect from a time anterior to their passage? or does it embrace all statutes, which, though
operating only from their passage, affect vested rights and past transactions? It would be a construction utterly
subversive of all the objects of the provision, to adhere to the former definition. It would enable the legislature to
accomplish that indirectly, which it could not do directly. Upon principle, every statute, which takes away or
impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions or considerations already past, must be deemed
retrospective; and this doctrine seems fully supported by authorities.

The deliberately wide scope of this definition is apparent. The forward application of a statute may, none the less,
be restrospective.
Returning to the merits of the appellant's argument, is it the case that the facts or considerations entitling Mrs.
Sanderson to claim support were "past" or complete at the time of the coming into force of the Act? According to the
scheme of the Act this depends upon whether she was a "spouse" at the time of her application. The appellant
submits that she was not because: (1) the five years was complete before March 31, 1978, and (2) that part of s.
14(b)(i), para. 1 requiring continuous cohabitation within the preceding year (there is no dispute that this means
preceding the application) is a limitation period and not really part of the definition of "spouse". I do not accept this
submission. While the one-year period undoubtedly serves the necessary purpose of a limitation provision it is
expressly made part of the definition of spouse. Therefore, a person satisfying the requirements of s. 14(b)(i), para.
1 is a spouse for the purposes of ss. 15 and 18. Further, I think that this conclusion is justified by more than the
technical application of a verbal formula. It is in accord with the policy of the Act which is to enable certain persons
who are in need to claim support. Such need may exist during cohabitation, and support may be sought at this time
regardless of the kind of ''spouse" seeking it. However, it is more likely that support will be needed, if it is needed at
all, after cohabitation has ended. Support then will serve a useful function. With this consideration in mind it seems
to me that it is reasonable to regard the final clause of s. 14(b) (i), para. 1 as part of the substantive definition of
"spouse" and not just a limitation provision. In short, the definition means what it says.
When the legislation is understood this way it is not retrospective. This approach is supported by The Queen v.
Inhabitants of St. Mary, Whitechapel (1848), 12 Q.B. 120 at p. 127, 116 E.R. 811, where the statute in question was
"not properly called a retrospective statute because part of the requisites for its action [was] drawn from time
antecedent to its passing". In that case the statute was concerned with a person who became a "widow" and it was
held not to be relevant when the woman became a widow, i.e., the statute was not retrospective if applied to a
woman who became a widow before the statute became law. The same approach is applicable to the consideration
of when a person becomes a "spouse", provided that he or she is one at the time of the application. These types of
situations may be contrasted with cases where the "facts" or "considerations" on which the statute acts are entirely
in the past, such as completed transfers of land (Bingeman v. McLaughlin, [1978] 1 S.C.R. 548, 77 D.L.R. (3d) 25,
28 R.F.L. 58) or contractual rights which are being asserted by way of action at the time of commencement of the
new legislation (Moon v. Durden (1848), 2 Ex. 22, 154 E.R. 389).
I think that the problem should also be examined on the assumption that the Act's application to this case is a
retrospective one, such an approach being based on the view that the only significant part of the definition of
"spouse" is the five years' continuous cohabitation requirement. The appellant does not submit that the presumption
against retrospectivity requires that the full five years has to run its course after the Act comes into force. Mr. Barrie
says that this would be "perverse". He submits that the presumption does, however, demand an interpretation
requiring at least part (at a minimum, one day) of the cohabitation to be in existence on March 31, 1978, the date
the Act came into force.
Applying accepted principles of statutory interpretation, can it be said to be within the clear intendment of this Act
that it includes a requisite period of cohabitation which has ended before the Act came into force?

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I start with the following statement from the judgment of Lamont, J., in Board of Trustees of Acme Village School
District No. 2296 v. Steele-Smith, [1933] S.C.R. 47 at p. 50, [1933] 1 D.L.R. 545 at pp. 550-1, made in the course of
considering the issue of retrospectivity:

If, however, any doubt as to the legislative intention exists after a perusal of the language of the Act, then, as
Lord Hatherly, L.C., said in Pardo v. Bingham (1869), 4 Ch. App. 735 at p. 740:

"We must look to the general scope and purview of the statute, and at the remedy sought to be applied, and
consider what was the former state of the law, and what it was that the Legislature contemplated."

In this Court in the case of Upper Canada College v. Smith (1920), 61 Can. S.C.R. 413, Mr. Justice Duff, at
page 419, pointed out various ways in which the legislative intention might be expressed. He said: --

"That intention may be manifested by express language or may be ascertained from the necessary implications
of the provisions of the statute, or the subject matter of the legislation or the circumstances in which it was
passed may be of such a character as in themselves to rebut the presumption that it is intended only to be
prospective in its operation."

As far as the language of the Act is concerned I think that it is significant that all of the factual ingredients giving a
person status to assert a claim for support are contained in a definition provision. This provision, of course, is not an
operative one. It defines an existing status, albeit by reference to past events. When the defined term is used in the
operative provisions (ss. 15 and 18) it is reasonable to assume that the Legislature intended that a person having
the defined status on the date the Act came into force would be entitled to the benefit of the operative provisions.
The case may have been different if the conduct entitling a person to claim support were set forth in the
operative provision. Reference to R. v. Vine (1875), L.R. 10 Q.B. 195, is helpful on this point. The issue in Vine was
whether legislation providing that "Every person convicted of felony shall for ever be disqualified from selling spirits
by retail ..." applied to a person who was convicted of a felony before the legislation came into force. The Court of
Queen's Bench held that it did. The words "Every person convicted" were interpreted to mean, in effect, "every
convicted felon". This interpretation was based on the Court's appreciation of the purpose of the legislation, an
issue to which I shall return, but for present purposes it may be thought that if the status or character of the person
to which the legislation was to apply had been defined outside the operative provision, as in the present case, it
would have been that much easier for the Court to have concluded that the legislation was intended to be
retrospective. In his helpful article, "Statutes: Retroactive Retrospective Reflections", 56 Can. Bar Rev. 264 (1978),
at p. 273, E. A. Driedger, Q.C., says that the correct view of the legislation in Vine was that of Cockburn, C.J., that
"... the statute was prospective only, since the fact-situation described in the statute was a characteristic that arose
in the past and not a past event". With respect, I view the decision in Vine as one holding that the legislation was
intentionally retrospective in its operation. Archibald, J., expressly said this (as noted by Mr. Driedger) and
Cockburn, C.J., used the term "necessarily retrospective" in the course of his reasons.
I turn now to the issue of the legislation's subject-matter. This was the determinative consideration in Vine as is
shown in the following passages, per Cockburn, C.J., at pp. 199-200:

The question is, whether a person who had been convicted of felony before the Act was passed became
disqualified on the passing of the Act. I think he did. If one could see some reason for thinking that the intention
of this enactment was merely to aggravate the punishment for felony by imposing this disqualification in
addition, I should feel the force of Mr. Poland's argument, founded on the rule which has obtained in putting a
construction upon statutes -- that when they are penal in their nature they are not to be construed
retrospectively, if the language is capable of having a prospective effect given to it and is not necessarily
retrospective. But here the object of the enactment is not to punish offenders, but to protect the public against
public-houses in which spirits are retailed being kept by persons of doubtful character. ... But the legislature has
categorically drawn a hard and fast line, obviously with a view to protect the public, in order that places of public

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resort may be kept by persons of good character; and it matters not for this purpose whether a person was
convicted before or after the Act passed, one is equally bad as the other and ought not to be intrusted with a
licence.

Per Mellor, J., at pp. 200-1:

It appears to me to be the general object of this statute that there should be restraints as to the persons who
should be qualified to hold licences, not as a punishment, but for the public good, upon the ground of character.
... A man convicted before the Act passed is quite as much tainted as a man convicted after; and it appears to
me not only the possible but the natural interpretation of the section that any one convicted of felony shall be
ipso facto disqualified, and the licences, if granted, void.

Per Archibald, J., at p. 202:

I was at one time impressed with the argument of Mr. Poland, that the enactment was in its nature penal; and I
quite agree, if it were simply a penal enactment, that we ought not to give it a retrospective operation; but it is
an enactment with regard to public and social order, and the infliction of penalties is merely collateral.

Lush, J., dissented on the ground that he viewed the legislation as being "highly penal".
What is the subject-matter of the legislation we are concerned with? It appears to be social legislation designed
to provide a remedy for people who find themselves in the situation of need described in the early sections of Part II
of the Act. It is fair to say that it recognizes that a "common law" spouse, as defined, by reason of the living
arrangement, including the division of functions during cohabitation, may become financially dependent on the other
spouse, and therefore a person in need, just as may a married spouse. Every such person has an obligation to
provide support for himself or herself but also has a right to obtain support from the other spouse if the requisites of
need and ability are shown. Section 18(3) enabling the Ministry of Community and Social Services or a municipal
corporation in the circumstances mentioned therein to apply for support demonstrates the public interest in the new
social ordering effected by Part II. The legislation is anything but penal. The entitlement to support is not based on
any concept of fault, as was the requirement of the repealed law, although previous conduct has a limited bearing
on the determination of the amount of support (s. 18(6)). The facts giving rise to the right to support are the existing
need of the dependant and the ability of the respondent to provide support. With these factors in mind it is
reasonable to conclude that the Legislature intended Part II to be applicable to all spouses, as defined by s. 14(b)(i),
para. 1, from the date the legislation came into force, even if the requisite period of cohabitation ended before this
time.
Mr. Barrie refers to other sections in the Act which, he submits, tell against any kind of a retrospective application
of ss. 15 and 18.
First, he refers to ss. 11(2), 12 and 49(2). These provisions advert to actual or possibly apparent issues of
retrospectivity and it is submitted that the absence of similar provisions in Part II requires that it be given the purely
prospective interpretation sought in this case.
In my view, these other provisions are of no assistance on this issue. Section 11(2), making the presumption of
resulting trust in questions of ownership of property between husband and wife applicable "notwithstanding that the
event giving rise to the presumption occurred before this section comes into force", is necessary to provide for a
clear retrospective or retroactive application of the presumption, as is illustrated by Bingeman v. McLaughlin, supra.
The provision is a response to Bingeman. I do not think that the absence of a similar provision in Part II, which is
concerned with issues quite different from previous transfers of property, is of any significance.

Section 12 reads:

12. This Part applies notwithstanding that,

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(a) the spouses entered into the marriage before this Part comes into force;

(b) the property in issue was acquired before this Part comes into force; or

(c) a proceeding to determine the rights as between spouses in respect of property has been commenced or
adjudicated before this Part comes into force.

The clause in this provision from which the greatest comfort could be drawn by the appellant, having regard to
any possible similarity of issues arising under Parts I and II, is cl. (a). Whatever purpose it may be serving in Part I
the absence of such a provision in Part II surely cannot give rise to doubt on the issue whether its provisions are
applicable to spouses who were married before the Part came into force. By definition, the Part clearly applies to
such spouses. A person qualifies as a spouse under s. 1(f)(i) (included in the definition in s. 14(b) by being married
at the time the Act came into force. There is no reason to believe that if someone is qualified as a spouse under the
extended definition in s. 14(b)(i), para. 1, when it came into force, the result should, as a matter of legislative
intention, be any different.

Section 49(2) is virtually in the same terms as s. 12.

Mr. Barrie also refers to s. 52(1) which enables

52(1) A man and a woman who are cohabiting and not married to one another [to] enter into an agreement in
which they agree on their respective rights and obligations during cohabitation, or upon ceasing to cohabit or
death, including,

.....

(b) support obligations;

He submits that this provision shows that the cohabitation period must, at least in part, be after the coming into
force of the Act. In my view, the considerations upon which this argument is based must be taken into account on
the issue as to whether Part II is clearly intended to include periods of cohabitation which have ended before the
Act came into force, provided that the applicant is otherwise within the definition of "spouse". However, they do not
incline me to a conclusion against such an interpretation. I do not consider the potential rights conferred by s. 52(1)
to be an essential part of the relationships contemplated by Part II -- at least to the extent that I would think that the
Legislature intended that no Part II relationship could come into existence until the rights conferred by s. 52(1) were
also in existence.
Section 59(2) may be of some relevance to this point. It recognizes the validity of cohabitation agreements
"entered into in accordance with this Part before this Part comes into force", in the circumstances mentioned
therein. This provision recognizes the pre-operation publicity given to the Act, including its provisions on support of
"common law" spouses, and tends to counter the effect of any argument based on the inability of "spouses" to enter
into cohabitation agreements before the Act came into force.
Doubtless the application of Part II to the appellant in this case, particularly taking into account his marriage in
January of 1978, has the appearance of unfairness and in some respects is incontrovertibly unfair. Possible
unfairness is the basic consideration giving rise to the presumption against retrospectivity. However, unfairness is a
relative concept, particularly where there are competing interests such as those involved in Part II. For the reasons
which I have given based on language and subject-matter, I have concluded that the competing interests have been
resolved in favour of retrospectivity, if the legislation may be properly characterized as retrospective. As far as the

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detailed application of the new law to the appellant is concerned the learned Judge of first instance took his
particular difficulties into account in determining the amount of the support.
I would note that those decisions concerned with the Act's support provisions and which have involved qualifying
periods of cohabitation completed before the Act came into force, which have come to my attention, have all treated
such cohabitation as being within the purview of the Act, whether or not the retrospectivity point was dealt with
specifically: Donheim v. Irwin (1978), 6 R.F.L. (2d) 242 (Prov. Ct. (Fam. Div.), Judicial District of York); Barlow v.
Barlow (1978), 8 R.F.L. (2d) 6 (Prov. Ct. (Fam. Div.), City of Frontenac, October 19, 1978); Re Illingworth and Hyatt
(Prov. Ct. (Fam. Div.), City of Hastings, September 12, 1978 [summarized [1979] 1 A.C.W.S. 274]), and Re Feehan
and Attwells, supra.
I would dismiss this appeal but, in the circumstances, without costs.

Appeal dismissed.

End of Document

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