Does a Cohabitation Agreement Replace a Separation Agreement in Ontario?

You and your partner signed a cohabitation agreement years ago, and now the relationship is ending. It is natural to ask whether that document already settles everything, or whether you need a separation agreement on top of it.

The honest answer is that it depends on what your cohabitation agreement says, how it was signed, and whether children are involved. This article explains how the two documents relate in Ontario and where a cohabitation agreement has limits.

What a cohabitation agreement is

Under the Family Law Act, two unmarried people who are living together, or who intend to, may make a cohabitation agreement about their rights and obligations, including property and support. It is a contract you make while the relationship is still going well.

To be enforceable, it must be in writing, signed by the parties and witnessed. Ontario's guidance also says both partners should sign in front of a witness, speak to different lawyers, and exchange financial information before signing.

If the parties later marry each other, the agreement is deemed to be a marriage contract. That is worth knowing if you married after signing.

Does it replace a separation agreement?

A separation agreement is simply a written deal made when a couple separates. A cohabitation agreement is not automatically the same thing, but it can overlap. If yours already says what happens to property and support if you separate, much of the work may be done. If it is silent, outdated or only partly covers your situation, a new agreement may still be useful.

The starting point matters too. Without an agreement, Ontario does not divide property between common-law couples, and each partner keeps what they bought. A cohabitation agreement is one way for unmarried partners to set out their own arrangements for property and support. A partner who contributed to property the other owns may also have a claim to part of it, and unless the owner agrees to pay the contribution back, court may be needed.

• Read what your agreement says about separation, property, support and the home.
• Check whether it was signed and witnessed properly.
• Note anything that has changed since you signed, and whether you have married, since the agreement is then deemed to be a marriage contract.
• Decide whether you want to confirm, update or replace its terms in a new written agreement.

What it cannot do about children

A cohabitation 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. Those need to be settled separately when you separate.

When a court is deciding a child's education, moral training, decision-making responsibility or parenting time, it may disregard any provision of a domestic contract on that matter if doing so is in the child's best interests. A court may also disregard a child support term if it is unreasonable having regard to the child support guidelines and any other child support provision in the contract. Every parent must support their child to the extent they are able, whether or not the parents were ever married.

When a court can set an agreement aside

A signed agreement is not always the last word. 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. It may also do so if a party did not understand its nature or consequences, or otherwise in accordance with the law of contract.

Support terms get extra scrutiny. A court may set aside a support provision or a waiver of support and order support, even if the contract excludes this, where the result is unconscionable, the dependant qualifies for support out of public money, or support under the contract is in default when the application is made.

What to do next

• Find the signed original and any amendments.
• Gather financial records for both partners, since missing disclosure can matter later.
• List what is not covered, especially parenting arrangements and child support.
• Avoid signing anything new until you understand how it changes the old agreement.
• Speak with a lawyer about whether your cohabitation agreement is enforceable and whether a separation agreement is worth adding.

Frequently asked questions