Cohabitation Agreement Checklist: What to Include in Ontario

Moving in together is exciting, and talking about money feels awkward. But Ontario does not automatically give unmarried couples the same property rules that married couples have, so a written agreement lets you decide for yourselves.

This checklist walks through the topics couples usually cover and the formalities that make an agreement valid in Ontario. It is a starting point for your conversation, not a replacement for advice on your own situation.

Why couples make a cohabitation agreement

Common-law couples are not legally required to split property acquired while they lived together. Property such as furniture and household items belongs to the person who bought it. If that does not match what you both expect, an agreement can change the result.

Two unmarried people who are cohabiting or intend to cohabit may make a cohabitation agreement under the Family Law Act. The wording means you can sign one after you have already moved in. When a domestic contract deals with a matter also covered by the Act, the contract prevails unless the Act provides otherwise.

The topics checklist

A cohabitation agreement can set your rights and obligations during cohabitation, on separation or on death, including ownership or division of property, support, the education and moral training of your children, and any other matter in settling your affairs. Work through these topics together:

• Property you each own now, and whether it stays yours alone
• Property you will buy together, and how it will be owned and divided
• The home: who owns it, who pays what, and what happens if you separate
• Debts you each bring and debts you take on together
• Day-to-day expenses and how you will share them
• Spousal support: whether it is payable, and in what circumstances
• What happens on death, including how the agreement fits with your wills
• Education and moral training of any children
• Financial disclosure: a list of assets, debts and income each of you will share
• What happens if you later marry

Limits on what an agreement can do

An agreement is flexible, but not unlimited. A cohabitation agreement cannot fix decision-making responsibility or parenting time for children. A court may also disregard a child support term that is unreasonable having regard to the child support guidelines, and may disregard education or parenting terms where doing so is in the child's best interests.

Support waivers can also be challenged. A court may set aside a support provision or waiver in a domestic contract where it results in unconscionable circumstances, where the dependant qualifies for support from public money, or where support under the contract is in default.

If you later marry each other, the cohabitation agreement is deemed to be a marriage contract. Any provision in a marriage contract that tries to limit a spouse's matrimonial home rights is unenforceable. So terms about the home may not survive a wedding in the same form.

Formalities that make it valid

A domestic contract, including a cohabitation agreement, and any agreement amending or rescinding one, is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance says both partners must sign in front of a witness.

The statute does not list independent legal advice as a formal requirement. Still, Ontario's guidance advises that partners should speak to different lawyers and exchange financial information before signing. This matters because 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 did not understand its nature or consequences.

What to do next

Start by each making a private list of what you own, what you owe and what matters most to you. Then compare lists and talk through the checklist above before anyone drafts a word.

• Collect statements, deeds, loan documents and pay information for full disclosure.
• Book separate meetings with different lawyers.
• Agree on how the agreement will be reviewed when your life changes, such as buying a home or having a child.
• Sign only a final version, in front of a witness, and keep a copy each.

Because the agreement is meant to last, a lawyer can confirm that its wording will work for your circumstances and that the formalities are met.

Frequently asked questions