How to Make a Valid Cohabitation Agreement in Ontario

If you live with a partner without being married, you may want your rules about money and property written down. A cohabitation agreement is the tool Ontario's Family Law Act provides for that. It only helps you if it is made properly.

This article walks through what makes one valid and what can undermine it. It is general information, not advice on your situation. A lawyer can confirm how it applies to you.

Why unmarried couples need one

Ontario does not divide property between common-law couples when they separate. Each partner keeps the property they bought, and neither has a right to share the other's increase in property value. Furniture and household items belong to the person who bought them. There is an exception: a common-law partner who contributed to property the other owns may have a right to part of it, and unless the owner agrees to pay the contribution back, the partner may have to go to court.

The matrimonial home rules also do not cover unmarried partners. The Family Law Act uses the word "spouse" in those rules in its married-spouse sense. A written agreement is how you can set out your own arrangements instead of relying on those default rules. Our related articles on common-law property and the matrimonial home explain those rules in more detail.

Who can make one and what it can cover

Under Family Law Act s. 53(1), two unmarried persons who are cohabiting, or who intend to cohabit, may make a cohabitation agreement about their rights and obligations, including property and support. So you can sign one before moving in together or while you already live together.

There are limits on children's terms. The agreement may deal with the right to direct the children's education and moral training. It cannot deal with decision-making responsibility or parenting time. Our article on cohabitation agreements and children covers this topic.

If you later marry each other, the agreement is deemed to be a marriage contract.

The formal rule: writing, signatures and a witness

Under Family Law Act s. 55(1), a domestic contract, including a cohabitation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed. A verbal deal or a text exchange is not enough.

• The agreement is written down in full.
• Both partners sign it.
• The signatures are witnessed.

Ontario's guidance adds that both partners must sign in front of a witness. Do not sign one day and have a friend add a witness signature later. Sign together, with the witness present. As a practical tip rather than a legal requirement, each of you may want to keep a complete signed copy for your own records.

Separate lawyers and financial disclosure: guidance, not a statutory step

Ontario's guidance advises that each partner speak to a different lawyer and that the partners exchange financial information before signing. This is guidance. The statute's formal requirements are writing, signatures and a witness.

Still, these steps matter because of what a court can do later. 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 the contract was made. It may also set it aside if a party did not understand its nature or consequences, or otherwise in accordance with the law of contract.

• List what you own, including property, savings, and investments.
• List what you owe, including loans, credit cards and lines of credit.
• Share supporting documents such as statements, so nothing important is left out.
• Give each person time to read the draft and ask questions before signing.
• Keep a record of what was exchanged and when.

When a court can override the agreement anyway

A signed agreement is not always the last word. A court may set aside a support provision or a waiver of support and order support, even if the contract expressly excludes s. 33. It may do so if the provision or waiver results in unconscionable circumstances, if the dependant qualifies for support out of public money, or if support under the contract is in default when the application is made.

Terms about children have their own limits. A court may disregard a provision on a child's education, moral training, decision-making responsibility or parenting time if doing so is in the child's best interests. It may disregard a child support provision if it is unreasonable having regard to the child support guidelines and any other child support provision in the contract.

What to do next

Start by deciding what you want the agreement to cover, then gather your financial information. Because each partner is advised to see a different lawyer, plan for that early so neither of you feels rushed.

• Write down your goals for property, support and shared expenses.
• Gather statements for assets and debts.
• Exchange financial information with your partner.
• Have each partner speak to a different lawyer.
• Sign together in front of a witness.
• Review the agreement if your circumstances change, such as having a child or getting married.

If you are already in a dispute or are unsure whether an existing agreement is valid, speak with a lawyer before acting.

Frequently asked questions