Cohabitation Agreement in Ottawa: Ontario and Quebec Border Couples

Ottawa couples live next to a provincial border. It is common to work in one province and live in the other, or to rent in Ottawa now and think about buying in Gatineau later. A cohabitation agreement signed in Ontario may then be asked to do more than you first expected.

This article explains how Ontario treats cohabitation agreements and what to think about if you may relocate to Quebec. It does not describe Quebec law in detail. Quebec's rules are separate and should be confirmed with a Quebec source or lawyer.

What an Ontario cohabitation agreement is

Two people who are cohabiting or intend to cohabit, and are not married, may make a cohabitation agreement covering rights and obligations during cohabitation, on ceasing to cohabit, or on death, including ownership and division of property and support. If you later marry each other, the agreement is deemed a marriage contract.

It is a domestic contract, so it is unenforceable unless made in writing, signed by the parties and witnessed. Ontario guidance adds that each partner should use a different lawyer and exchange financial information, and that the agreement cannot decide decision-making responsibility or parenting time for children.

Why it matters in Ontario at all

Without an agreement, unmarried partners are not 'spouses' for property equalization. Common-law couples are not legally required to split property acquired while living together. Spousal support is different: it extends to unmarried people who cohabited continuously for at least three years, or who are in a relationship of some permanence and are parents of a child.

When one of you dies, an unmarried partner has no intestate share. An agreement can address what happens on death. These are the gaps that an Ottawa couple living in Ontario is trying to fill.

How Ontario treats an agreement made elsewhere

If you sign an agreement outside Ontario, or later move away, Ontario law has a specific rule. The essential validity and effect of a domestic contract is governed by its proper law. Even so, the Ontario grounds for setting aside a support waiver and for setting aside a contract still apply in Ontario to such contracts, and parenting-decision provisions are not enforceable in Ontario.

The grounds include failure to disclose significant assets or debts, not understanding the nature or consequences of the contract, and other contract-law grounds. A support provision or waiver can be set aside if it results in unconscionable circumstances, if the dependant qualifies for public support allowances, or if there is a default in payment at the time of the application.

Which province's courts hear a dispute, and which law applies, depends on where you live and on what your agreement says about governing law. That is a question to put to a lawyer before you move, not after.

If you may move to Gatineau

Quebec has its own rules for couples who live together without marrying. Do not assume that your Ontario rights, such as spousal support after three years of cohabitation, carry over unchanged. The rules in Quebec are different and are set by Quebec law, which this article does not describe.

If a move is realistic, consider asking the lawyer who drafts the agreement to address the move directly, for example by including a governing-law clause and a plan for review on relocation. Whether that is the right approach depends on the facts.

Other places the definition of 'common-law' differs

There is no single date on which a couple becomes common-law. Under the Income Tax Act, a common-law partner is someone who has cohabited in a conjugal relationship for the 12-month period ending at that time, or is the parent of a child of whom the taxpayer is a parent. For the Canada Pension Plan survivor's pension, it is at least one year of living together in a conjugal relationship. For support under the Family Law Act, it is three years or a child with a relationship of some permanence. Because the tests differ, a move or a change in how you live can affect your status under some laws and not others.

What to do next

• Decide honestly whether a move to Gatineau is possible in the next few years.
• Write down your start-of-cohabitation date and any periods apart, since start dates can affect the length of support.
• Gather your financial information, because full disclosure helps an agreement hold up.
• Each speak with your own lawyer, and if a move is likely, ask about Quebec advice too.
• Keep a copy of the signed, witnessed agreement where you can both find it.
• Revisit the agreement, your wills and powers of attorney after any move.

Frequently asked questions