What Can a Cohabitation Agreement Cover in Ontario?

If you live with a partner without being married, Ontario's family property rules work very differently for you than for a married couple. Many people assume that after a few years together they have the same rights. Often they do not, and that surprise tends to arrive at the worst time.

A cohabitation agreement is the tool the law gives unmarried couples to set their own terms. This article explains what you can put in one, what you cannot, and where a court keeps the power to step in anyway.

Why unmarried couples consider an agreement

Under the Family Law Act, a "spouse" for property division and the matrimonial home means two people who are married to each other, or who entered a marriage that is voidable or void. It does not include unmarried partners. The matrimonial home protections use that same meaning, so they do not cover unmarried partners either.

In practical terms, 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 in the increase in value of the other's property. Furniture and household items belong to the person who bought them.

There is an exception where one partner has contributed to the other's property. A common-law partner who contributed to property the other person owns may have a right to part of it. Unless the owner agrees to pay the contribution back, the partner may have to go to court. An agreement lets you decide these things in advance instead.

What you can put in the agreement

Two unmarried people who are cohabiting, or who intend to cohabit, may make a cohabitation agreement about their rights and obligations, including property and support. Cohabit means living together in a conjugal relationship, whether or not the couple is married.

• Who owns what now, and who will own what you buy later, including the family home.
• How property would be shared, or kept separate, if you separate.
• Whether either partner will pay support to the other, and how much.
• The right to direct the children's education and moral training.

These are general categories. How to word them for your situation is where a lawyer's help matters.

What the agreement cannot decide

A cohabitation agreement cannot deal with decision-making responsibility or parenting time for the children. Those matters cannot be settled in advance through this kind of contract.

Even for the child-related matters it can cover, the court keeps control. When deciding a child's education, moral training, decision-making responsibility or parenting time, the court may disregard any provision of a domestic contract on that matter if doing so is in the child's best interests. A child support term can also be disregarded 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. A court may disregard a child support term in an agreement if it is unreasonable under the child support guidelines.

Support terms, waivers and when a court can step in

Many couples want to limit or waive spousal support. Before doing so, it helps to know who counts as a spouse for support. For support only, the Family Law Act widens "spouse" to include two unmarried people who have cohabited continuously for at least three years. Unmarried partners are also spouses for support, however long they lived together, if they cohabited in a relationship of some permanence and are the parents of a child as set out in s. 4 of the Children's Law Reform Act.

A court may set aside a support provision or a waiver of support in a domestic contract and order support, even if the contract says otherwise, in three situations:

• The provision or waiver results in unconscionable circumstances.
• The dependant qualifies for support out of public money.
• Support under the contract is in default when the application is made.

A court may also 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 do the same if a party did not understand its nature or consequences, or otherwise in accordance with the law of contract.

Meanings of spouse and common-law partner differ by law

Being a spouse or common-law partner is not one single test in Ontario. The definition depends on the law involved, and your situation may touch more than one.

Which definition applies depends on the law involved, so it is worth confirming with a lawyer or accountant how your own situation is treated.

Making it valid and what to do next

A domestic contract, including a cohabitation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance adds that each partner should speak to a different lawyer and that you should exchange financial information before signing.

If you later marry each other, the agreement is deemed to be a marriage contract. That is worth remembering when you write it, so that its terms still suit you after a wedding.

• List your assets, debts and income, and share them openly with your partner.
• Decide what you want to say about property, support and the home.
• Keep parenting time and decision-making out of the agreement.
• Each book a separate lawyer to review it.
• Sign in writing in front of a witness, and keep a copy each.

Frequently asked questions