Can a Cohabitation Agreement Waive Spousal Support in Ontario?

Many couples who move in together want to keep their finances separate and agree that neither will ever claim spousal support. A cohabitation agreement is the usual tool. People then wonder whether such a clause will actually hold if the relationship ends.

In Ontario, the answer is often yes, but not always. The law gives courts room to step in, and the clause only works if the agreement itself was properly made.

Who can claim support, and why a waiver matters

For support, the Family Law Act treats two unmarried people as spouses if they have cohabited continuously for at least three years, or are in a relationship of some permanence and are the parents of a child. Every such spouse has an obligation to support themselves and the other spouse, in accordance with need, to the extent capable of doing so.

Ontario's guidance says you may be eligible if relationship responsibilities such as childcare prevented you from building your own career, if separation left you in need and your spouse can pay, or if an agreement provides for support. A waiver is an attempt to remove that claim in advance.

What a cohabitation agreement can say about support

Two people who are cohabiting or intend to cohabit, and are not married, may make a cohabitation agreement covering their rights and obligations, including support. If they later marry each other, the agreement is treated as a marriage contract.

To be enforceable it must be in writing, signed and witnessed. Ontario's guidance also says each partner should use a different lawyer and exchange financial information. Whether an agreement can later be challenged for non-disclosure or a lack of understanding turns on the facts of each case.

When a court can override a support waiver

Family Law Act s. 33(4) lets a court set aside a support provision or waiver in a domestic contract in three situations.

These grounds sit on top of the general ones. A court may also set aside a contract or a provision if a party failed to disclose significant assets, debts or liabilities, if a party did not understand the nature or consequences of the contract, or otherwise under the law of contract.

Courts do not always strike waivers. In Moses Estate v. Metzer, 2017 ONCA 767, the Court of Appeal set aside property clauses of a cohabitation agreement but left the spousal support waiver in place because there was no finding the parties misunderstood it.

Other limits: children and death

• Child support: a court may disregard a child-support provision that is unreasonable having regard to the child support guidelines.
• Parenting: a cohabitation agreement cannot decide decision-making responsibility or parenting time.
• Claims after death: if a common-law partner meets the support definition, they can be a dependant of the deceased, and the court may make an order despite any agreement or waiver to the contrary. Such an application generally cannot be made after six months from the grant of probate or letters of administration.

So a waiver may carry less weight than a couple expects, particularly where children or financial need are involved.

What to do next

• Decide together what you actually want the support clause to do, and whether it should apply forever or only in certain situations.
• Each of you should get your own lawyer before signing.
• Exchange complete financial information and attach it to the agreement.
• Allow time to review, with no pressure or last-minute deadlines.
• Sign in front of a witness and keep the original safe.
• Revisit the agreement after major changes such as children, a move or a large change in income.

If you already signed a waiver and are worried about it, a lawyer can review the wording and the circumstances of signing.

Frequently asked questions