What a Common-Law Separation Agreement Should Include in Ontario

Married spouses who separate can fall back on the Family Law Act's equalization scheme even if they never write anything down. Unmarried couples don't get that safety net — which makes a written common-law separation agreement far more important, not less, when a relationship ends. Without one, each partner is left relying on whatever they can prove about property ownership, and on general contract or trust law, rather than a built-in statutory formula.

That gap means a common-law separation agreement often needs to cover more explicit ground than a married couple's agreement might, precisely because there's no default statutory backstop for property division. Below is what a thorough one should address.

Why Common-Law Separation Agreements Look Different

Unmarried partners in Ontario have no automatic right to equalization of property under the Family Law Act, no matter how long they lived together. Property questions for common-law couples are instead resolved through other legal doctrines, or through what the couple agrees to themselves — which is exactly why a clear, comprehensive agreement matters more here than it might for a married couple who has the FLA's default rules as a backstop.

Property and Assets

• [ ] A full list of significant assets each partner owns, and how each was acquired — before or during the relationship, whose name is on title, who paid for what
• [ ] How jointly held property, such as a home, vehicle, or joint account, will be divided or bought out
• [ ] Any agreement about property one partner contributed to that's titled in the other's name — a common and often contentious issue for unmarried couples
• [ ] Treatment of jointly accumulated savings, investments, or business interests

Debts

• [ ] Which partner is responsible for which existing debts
• [ ] How joint debts, such as a joint credit card or a co-signed loan, will be paid down and by whom
• [ ] Confirmation of who remains liable to third-party lenders even after the agreement is signed, since a private agreement doesn't automatically change what a bank considers you liable for

Support

• [ ] Whether either partner may qualify as a "spouse" for spousal support purposes under the Family Law Act — based on cohabiting continuously for the Act's minimum period, or being in a relationship of some permanence with a child together
• [ ] If support is agreed to, the basis for it and whether it's reviewable later
• [ ] Child support, calculated on an income-based guideline basis regardless of whether the parents were ever married

Children: Parenting Time and Decision-Making

• [ ] A parenting time and decision-making schedule, addressed under the Children's Law Reform Act framework that governs unmarried parents
• [ ] How decisions about health, education, and other significant matters will be made or shared
• [ ] A process for resolving future disagreements without going straight back to court

The Home

• [ ] Whether the home is owned, and by whom, or held under a lease
• [ ] Who stays, for how long, and on what terms — rent, mortgage payments, eventual sale or buyout
• [ ] A note that the Family Law Act's special matrimonial home protections don't apply to unmarried couples, so the agreement itself is doing more of the work than it would for a married couple

Making It Legally Binding

Like any domestic contract, a common-law separation agreement is enforceable under the Family Law Act only if it's in writing, signed by both partners, and signed in front of a witness. No court approval is needed to make it valid. Both partners should also get independent legal advice before signing — an agreement drafted or reviewed by only one side's lawyer is more vulnerable to a later challenge.

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