Cohabitation Agreement Checklist for Ontario: Documents and Disclosure

Most of the work in a cohabitation agreement happens before anyone signs. Putting together a clear picture of what each of you owns and owes makes the conversation easier and makes the agreement stronger.

This checklist covers the documents, assets, debts and decisions couples commonly gather. It is a general guide, and a lawyer can tell you what matters for your situation.

Why disclosure matters

Two unmarried people who are cohabiting or intend to cohabit can make a cohabitation agreement covering property, support and other matters in settling their affairs. Without one, unmarried partners are generally not legally required to split property acquired while living together, and household items belong to the person who bought them.

If you want a different result, the agreement has to say so, and it has to be reliable. A court may set aside a domestic contract if a party failed to disclose significant assets, debts or other liabilities that existed when it was made. Full disclosure protects both of you.

Financial documents to gather

Each partner should collect their own records. Typical items include:

• Recent income tax returns and notices of assessment
• Recent pay stubs, or business financial statements if self-employed
• Bank, savings and investment account statements
• Retirement account and workplace pension statements
• Credit card, line of credit, loan and student debt statements
• Mortgage statements and property tax bills for any real estate
• Ownership and value details for any home, vehicle or business
• Life insurance policies and named beneficiaries
• Any existing will, separation agreement or other domestic contract

Exact lists vary with your circumstances, so ask your lawyer what else is relevant.

Assets and debts to sort out

Go through what each of you brings into the relationship and what you expect to acquire together. Questions worth answering in writing:

• What does each person own now, and what is it worth?
• What debts does each person have, and who is responsible for them?
• If one of you owns the home, will the other have any right to stay or any share? Without an agreement, an unmarried partner has no statutory right to share or stay in a home the other owns.
• If one partner contributes money or work to property the other owns, how will that be recognized? A partner who contributed may have a right to part of it, and may need to go to court if the owner will not agree.
• How will you hold new purchases, such as a joint account or jointly owned property?
• How will you handle gifts, inheritances and a family business?

Decisions about support, children and the future

Many couples also decide how they will deal with support if they separate. Unmarried partners can be spouses for support if they have cohabited continuously for at least three years, or have a child together and a relationship of some permanence. An agreement can address support, but a court may set aside a support waiver where it results in unconscionable circumstances, where the dependant qualifies for support from public money, or where support is in default.

Children need separate attention. A cohabitation agreement cannot fix decision-making responsibility or parenting time. A court may also disregard a child support term that is unreasonable under the child support guidelines, and may disregard education or parenting terms where that is in the child's best interests.

Finally, think about marriage. If the parties to a cohabitation agreement marry each other, it is deemed to be a marriage contract.

Signing properly and next steps

The agreement, and any later change to it, is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance advises that you speak to different lawyers and exchange financial information before signing. A court can also set aside a contract if a party did not understand its nature or consequences.

• Each partner builds their own list of assets, debts and income.
• Exchange the documents and give each other time to review them.
• Book separate meetings with separate lawyers.
• Write down your decisions on property, the home and support.
• Sign in front of a witness and keep your own signed copy.
• Set a reminder to review the agreement after major life changes.

Frequently asked questions