- A court may set aside a domestic contract if a party failed to disclose significant assets, debts or liabilities that existed when it was made.
- Other grounds include not understanding the contract's nature or consequences, or reasons under the law of contract.
- Support waivers, child support and parenting terms get extra scrutiny and can be disregarded in certain situations.
You signed a cohabitation agreement, and now you are unhappy with it. Maybe you feel you were not told the full picture, felt pressured, or think the terms are lopsided now that the relationship has changed.
This article explains the grounds the Family Law Act sets out for setting aside a domestic contract. Whether a challenge could succeed depends heavily on the facts, so a lawyer should review your documents.
Start with whether the agreement is valid
A cohabitation agreement is made under section 53 of the Family Law Act between two unmarried people who are cohabiting or intend to cohabit. A domestic contract is unenforceable unless it is in writing, signed by the parties and witnessed. If one of those requirements is missing, the agreement may not be enforceable at all, which is a different question from setting it aside.
Ontario's guidance also says both partners must sign in front of a witness, and it advises that each partner speak to a different lawyer and exchange financial information before signing. If you are not sure whether these steps were taken in your case, a lawyer can help you work out what that means for your situation.
The grounds in the Family Law Act
The Act sets out when a court may set aside a domestic contract or a provision in it:
| Ground | What it means |
|---|---|
| Non-disclosure | A party failed to disclose significant assets, debts or other liabilities that existed when the contract was made. |
| Lack of understanding | A party did not understand the nature or consequences of the contract. |
| Law of contract | The contract can be set aside otherwise in accordance with the law of contract. |
The word "may" matters. Even when a ground exists, the court has discretion about whether to set aside the whole contract or only a provision.
Pressure, unfairness and regret
Feeling pressured to sign, for example being asked to sign at the last minute, is a common worry. Whether pressure of that kind affects the agreement depends on your facts, so it is worth confirming with a lawyer. The Act also allows a contract to be set aside otherwise in accordance with the law of contract.
The Act lists specific grounds, including non-disclosure, lack of understanding, and otherwise in accordance with the law of contract. Whether an agreement that seems unfair, or that you now regret, fits any of them depends on your facts, and a lawyer can confirm. Support terms have an additional test, covered below.
Evidence usually matters more than feelings. Things that tend to help a court understand what happened include:
- Drafts of the agreement and emails or messages about timing and pressure.
- Any financial disclosure that was or was not exchanged.
- Records showing your assets and debts at the time of signing.
- Whether each partner had separate legal advice.
- Notes of when you first saw the document and when you signed.
Support, child support and parenting terms
A court may set aside a support provision or a waiver of support and order support, even if the contract excludes section 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.
Children's matters are treated separately. A cohabitation agreement cannot deal with decision-making responsibility or parenting time. When a court decides a child's education, moral training, decision-making responsibility or parenting time, it may disregard a contract provision on that matter if doing so is in the child's best interests. It may also disregard a child support provision that is unreasonable having regard to the child support guidelines and any other child support provision in the contract.
What to do next
How a challenge would work for your agreement depends on your situation, so it is worth speaking with a lawyer early rather than waiting.
- Collect the signed agreement, drafts and all related messages.
- Gather records of what each of you owned and owed on the signing date.
- Write a short timeline: when the agreement was proposed, when you saw it and when you signed.
- Note who was present at signing and who witnessed it.
- Ask whether you had separate legal advice, and keep any records of it.
- Speak with a family lawyer about which grounds, if any, fit your facts.
Frequently asked questions
Can I cancel a cohabitation agreement because I now think it is unfair?
Unfairness alone is not a listed ground. A court may set aside a domestic contract for non-disclosure of significant assets or debts, lack of understanding, or reasons under the law of contract. Support terms have a separate test for unconscionable circumstances.
What if my partner hid assets before we signed?
A court may set aside a 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. Whether the undisclosed items are significant is a factual question.
Does a waiver of spousal support always hold?
No. A court may set aside a support waiver and order support if it results in unconscionable circumstances, if the dependant qualifies for public support, or if support under the contract is in default.
Can the agreement decide parenting time?
No. A cohabitation agreement cannot deal with decision-making responsibility or parenting time. A court may also disregard a contract provision on those matters if that is in the child's best interests.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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