Can a Cohabitation Agreement Be Set Aside in Ontario?

If you and your partner are not married, a cohabitation agreement lets you set out in advance how property and support will be handled. Many couples sign one expecting it to settle things for good, and others sign one and later wonder whether it will really hold.

In Ontario, a court can sometimes disregard or overturn all or part of these agreements. This article walks through the basics and then the main situations where that can happen, so you know what to ask a lawyer.

The basics: what makes the agreement valid

Two unmarried people who are cohabiting, or who intend to cohabit, may make a cohabitation agreement about their rights and obligations, including property and support, under Family Law Act s. 53(1).

A domestic contract, including a cohabitation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed. A verbal deal or an unsigned draft will not do.

If the parties to a cohabitation agreement later marry each other, the agreement is deemed to be a marriage contract.

Grounds for setting the agreement aside

Under Family Law Act s. 56(4), a court may set aside a domestic contract, or a provision in it, on the following grounds.

• A party failed to disclose significant assets, debts or other liabilities that existed when the contract was made.
• A party did not understand the nature or consequences of the contract.
• Otherwise in accordance with the law of contract.

The court can set aside the whole agreement or only a provision in it. Whether a ground applies depends on the facts, so a lawyer can tell you how it might apply to your situation.

Support waivers can be overridden

Even if a cohabitation agreement says one partner gives up spousal support, a court may set aside a support provision or a waiver of support and order support. This is so even if the contract expressly excludes s. 33 of the Family Law Act.

Terms about children

A cohabitation agreement may deal with the right to direct the children's education and moral training. It cannot deal with decision-making responsibility or parenting time for the children.

• Education and moral training: when deciding these, the court may disregard a provision of the agreement if doing so is in the child's best interests.
• Decision-making responsibility and parenting time: the court may likewise disregard an agreement provision if that is in the child's best interests.
• Child support: the court may disregard a provision if it is unreasonable having regard to the child support guidelines and any other child support provision in the contract.

What to do next

If you are planning an agreement, a few steps make it more likely to hold up. Ontario's guidance says both partners must sign in front of a witness, that each partner should speak to a different lawyer, and that the partners should exchange financial information before signing.

• Put the agreement in writing, sign it and have it witnessed.
• Each of you should speak to your own lawyer.
• Exchange full financial information before signing.
• Keep the agreement's terms about children within what the law allows.
• If you already have an agreement and a separation is looming, bring it to a lawyer to review.

Frequently asked questions