Cohabitation Agreement vs No Agreement: What Changes in Ontario

Many couples in Ontario live together for years without marrying and without signing anything. It feels simple, and for a long time it may be. The difference between having an agreement and not having one usually only shows up when the relationship ends, by separation or by death.

This article compares the two paths in plain terms. It explains what the law gives you by default, what it does not, and what a cohabitation agreement can change. It is general information, not advice on your situation.

Who counts as a spouse depends on which law applies

Under the Family Law Act, to 'cohabit' means to live together in a conjugal relationship, whether within or outside marriage. But whether you are a 'spouse' depends on what you are asking for.

For property equalization under Part I, a spouse means people who are married to each other, so unmarried partners are not spouses for that purpose. For spousal support under Part III, the definition widens to two unmarried people who have cohabited continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child.

This split is why living together without an agreement leaves you with some rights (support) and not others (equalization of property).

The practical differences at a glance

What happens on separation without an agreement

Common-law couples are not legally required to split property acquired while living together. Furniture and household items belong to the person who bought them, and there is no right to share in the increase in value of property one partner brought into the relationship.

That does not mean you have no options. Unmarried partners can claim unjust enrichment, and where there was a joint family venture the remedy can be a proportionate share of the wealth built up, linked to contributions. There is no presumption of a joint family venture, and intent and conduct weigh heavily. If you contributed to property your partner owns, you may have a right to part of it, but unless your partner agrees to pay you back you may have to go to court.

Timing matters. The basic limitation period is two years from the day a claim was discovered, with a 15-year ultimate limit, and this applies to claims such as unjust enrichment between former partners. Spousal support is different: there is no limitation period for a support proceeding under the Family Law Act, although you must still show you qualified as a spouse and a court may weigh delay.

For support, every qualifying spouse has an obligation to support themselves and the other spouse in accordance with need, to the extent capable of doing so. How long support lasts can depend on when cohabitation began. In one Court of Appeal case, a start date fixed too early led to indefinite support being reduced to ten years. Without an agreement, a dispute over your start date can become a dispute over everything.

What happens on death without an agreement

The Succession Law Reform Act uses the married meaning of 'spouse' for inheritance on intestacy, so an unmarried partner has no intestate share and is not an automatic beneficiary. A person can dispose of property by will, and Ontario law gives no automatic share of an estate to an unmarried partner. A relationship does not change a will either; a will is revoked only by another will, a declaratory writing, or destruction with intent to revoke.

A surviving partner is not without options. For dependants' support, a common-law partner who meets the three-year or child test can be a 'dependant'. If the deceased did not make adequate provision for proper support, the court may order it from the estate. That application generally cannot be made after six months from the grant of probate or letters of administration, with only limited power to extend. In some facts there may also be an equity claim, or a challenge to the will itself.

Incapacity is a related risk. Without a power of attorney for property, a spouse cannot automatically step in on finances and may have to go to court to become a guardian.

What an agreement can and cannot do

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 must be in writing, signed by both parties and witnessed, or it is unenforceable.
• Each partner should use a different lawyer and exchange financial information.
• It cannot decide decision-making responsibility or parenting time for children.
• A court may disregard a child support term that is unreasonable under the child support guidelines.

An agreement is not bulletproof. A court may set aside a contract or a provision if a party failed to disclose significant assets or debts, did not understand its nature or consequences, or on other contract-law grounds. A support waiver can also be set aside in certain cases, including unconscionable circumstances. In one Court of Appeal case, property clauses were set aside because neither party understood the consequences, while the support waiver stayed in place. Honest disclosure and real understanding are what make an agreement hold up.

What to do next

If you are weighing doing nothing, start by listing what is at stake. Then decide which gaps worry you most.

• Write down the date you began living together and any periods apart.
• List what each of you owns, owes and earns, and what you have contributed to each other's property.
• Check whether you have wills and powers of attorney, and whether they name each other.
• Talk openly about what each of you expects if you separate or one of you dies.
• Speak with a lawyer, separately from your partner, about whether an agreement suits you.

Frequently asked questions