Cohabitation Agreements for Blended Families in Ontario

If you are moving in with a new partner and one or both of you have children from an earlier relationship, you probably want clear answers. Who keeps the home you already own? What happens to savings you want to protect for your children? What if the relationship ends?

In Ontario, a cohabitation agreement is one way to put those answers in writing. This article explains what it can and cannot do, and how to make one that is more likely to hold up. It is general information, not advice for your situation.

Why unmarried partners often need an agreement

The Family Law Act rules on property division and the matrimonial home use a definition of spouse that covers married people, not unmarried partners. When common-law couples separate, Ontario does not divide their property. Each partner keeps the property they bought, and neither has a right to share the other's increase in value.

Furniture, household items and other property belong to the person who bought them. For a blended family, that default can protect you or leave you exposed, depending on whose name is on what. An agreement lets you choose your own rules instead.

One exception: a common-law partner who contributed to property the other owns may have a right to part of it. Unless the owner agrees to pay the contribution back, the partner may have to go to court.

What a cohabitation agreement can cover

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. For a blended family, people often think about topics like these:

• Which property each of you owns now and will keep, such as a home or savings you want to protect for your children.
• How you will treat a home you buy together, and what happens to it if you separate.
• Whether either of you will support the other, and on what terms.
• How you will handle shared bills and household costs, as general planning.

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

What it cannot do about the children

An agreement may deal with the right to direct the children's education and moral training, but it cannot deal with decision-making responsibility or parenting time. Even on education and moral training, the court may disregard a provision if doing so is in the child's best interests.

Child support is also not fully in your hands. Every parent must support their child to the extent they are able, whether or not the parents were ever married. A court may disregard a child support provision in a domestic contract if it is unreasonable having regard to the child support guidelines and any other child support provision in the contract.

Making the agreement hold up

A domestic contract, including a cohabitation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance also advises that each partner speak to a different lawyer and that you exchange financial information before signing.

A court may set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets, debts or other liabilities that existed when it was made, or if a party did not understand its nature or consequences. A court can also set aside a support provision or a waiver of support if it results in unconscionable circumstances, if the dependant qualifies for support out of public money, or if support under the contract is in default when the application is made.

What to do next

• List what each of you owns and owes, and share it honestly.
• Decide which assets you want to keep separate, especially those meant for your children.
• Talk about support and housing if the relationship ends.
• Each of you speak with a different lawyer before signing.
• Sign in writing in front of a witness.
• Revisit the agreement if your circumstances change, and speak with a lawyer about how wills and joint ownership fit with it.

Frequently asked questions