Consortium (Meaning of)

V et al. v. C et al., 1972 CanLII 495 (ON SC)

There is also a modern case in the Supreme Court of Canada dealing with consortium and the bases of Ontario jurisdiction:

Kungl v. Schiefer, 1962 CanLII 5 (SCC), [1962] S.C.R. 443, 33 D.L.R. (2d) 278, on appeal from 1960 CanLII 22 (ON CA), [1961] O.R. 1, 25 D.L.R. (2d) 344 (C.A.). There the Courts were concerned with whether there existed an action for alienation of affections in Ontario and concluded that there was not. At p. 7 O.R., p. 350 D.L.R., of the Court of Appeal judgment Schroeder, J.A., says:

The term "consortium" is not susceptible of precise or complete definition but broadly speaking, companionship, love, affection, comfort, mutual services, sexual intercourse

-- all belonging to the marriage state -- taken together make up what we refer to as consortium.

Cassan v. Giroux, 2024 ONSC 4785 (CanLII)

[12] Under s. 57(1) of the SLRA, a “dependent” includes “the spouse of the deceased” “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.”

[13] Under s. 57(1) of the SLRA, “spouse” under the SLRA has the same meaning as in s. 2 of the Family Law Act, R.S.O. 1990, c. F. 3.

[14] Under s. 29 of the FLA, “spouse” includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years.

[15] Section 57 of the SLRA defines “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage.”

[16] The parties agree that to determine whether the applicant and Mr. Villeneuve cohabited, the court must look to the factors identified in Molodowich v. Pettinen, (1980), 1980 CanLII 1537 (ON SC), which were endorsed by the Supreme Court of Canada in M. v. H.,1999 CanLII 686, [1999] 2 SCR 3. These factors and some associated questions for the court’s consideration were set out in para. 16 of Molodowich:

I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words “cohabitation” and “consortium”:

(1) SHELTER:

(a) Did the parties live under the same roof?

(b) What were the sleeping arrangements?

(c) Did anyone else occupy or share the available accommodation?

(2) SEXUAL AND PERSONAL BEHAVIOUR:

(a) Did the parties have sexual relations? If not, why not?

(b) Did they maintain an attitude of fidelity to each other?

(c) What were their feelings toward each other?

(d) Did they communicate on a personal level?

(e) Did they eat their meals together?

(f) What, if anything, did they do to assist each other with problems or during illness?

(g) Did they buy gifts for each other on special occasions?

(3) SERVICES:

What was the conduct and habit of the parties in relation to:

(a) Preparation of meals,

(b) Washing and mending clothes,

(c) Shopping,

(d) Household maintenance,

(e) Any other domestic services?

(4) SOCIAL:

(a) Did they participate together or separately in neighbourhood and community activities?

(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5) SOCIETAL:

(a) What was the attitude and conduct of the community towards each of them and as a couple?

(6) SUPPORT (ECONOMIC):

(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b) What were the arrangements concerning the acquisition and ownership of property?

(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) CHILDREN:

(a) What was the attitude and conduct of the parties concerning children?

[17] The extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case. (Molodowich, at para. 16.)

M. v. H., 1999 CanLII 686 (SCC), [1999] 2 SCR 3

[59] Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

Molodowich v. Penttinen, 1980 CanLII 1537 (ON SC)

[15] As to the meaning of “consortium”, see Appeal Justice Walter F. Schroeder in Kungl v. Schiefer, 1960 CanLII 22 (ON CA), [1961] O.R. 1, 25 D.L.R. (2d) 344, [1960] O.J. No. 569, 1960 Cars­well­Ont 72 (Ont. C.A.), at page 7 [O.R.]:

The term consortium is not susceptible of precise or complete definition but broadly speaking, companionship, love, affection, comfort, mutual services, sexual intercourse — all belonging to the marriage state — taken together make up what we refer to as consortium.