Cohabitation Agreements Ontario
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to your common law relationship or a cohabitation agreement in Ontario, you should seek professional assistance.
Template | Form (Part 1)
In this blog, I’ll be discussing some of the typical terms that you will find in cohabitation agreements in Ontario, what they are, what their benefits are, etc.
The introductory clause identifies a couple of things. First, it identifies what the agreement is (i.e. a cohabitation agreement). Second, it identifies when the agreement was made (which may or may not be the same date as the parties start cohabiting). Third, it identifies who entered into the agreement. Make sure to use the parties’ full legal names here!
The background sections gives information about the purpose and context of the agreement. In other words: what has happened in the past and what are the parties’ intentions going forward with respect to entering into this cohabitation agreement? The Background section is, in legalese, called the Recitals. This is typically non-binding information which does not form part of the meat and potatoes of the actual agreement. Typical examples of clauses that you see in the background section are as follows:
- The parties intend to cohabit with one another;
- The parties have cohabited since [x] and intend to cohabit with one another in the future;
- The parties want this Agreement to provide for their respective rights and obligations during cohabitation or on ceasing to cohabit or on death;
- The parties want this Agreement to provide for the ownership in or division of property, support obligations and the right to direct the educational and moral training of their children; and
- The parties want this Agreement to (either continue or terminate) upon their marriage to each other.
Before the body of the agreement begins, there will typically be a sentence such as “NOW THEREFORE in consideration of the mutual covenants contained in this agreement, the parties agree as follows”… (I personally believe that you can reduce the legalese to “The Parties therefore agree as follows”). What’s this line all about? What does the word consideration mean? Well, for any contract to be valid and enforceable, you need something called “Consideration“.
Note: Consideration means that there has been a real and fundamental exchange between the parties. Consideration is generally defined as an act, forbearance (i.e. not doing something you’re legally entitled to do), or promise by the promisee (i.e. the party receiving the promise) undertaken IN EXCHANGE for the promise. Consideration requires that some benefit flow from the promisor (i.e. the party making the promise) or that there is some detriment to the promisee in exchange for the promise. Consideration must move from the promisee. The party seeking to enforce the promise must show consideration. Motive or desire to make a promise does not constitute good consideration. If a party is already under a pre-existing legal duty to do or not do something, that may be challenged as not being adequate consideration. Similarly, if a party is under a public duty to do something, then that is generally not considered to be adequate consideration. Finally, a pre-existing duty owed by one party to the other may not be adequate consideration unless something new of value is being provided. To wrap your head around it, just think about this example: if I promise to give you $1,000 if you like me more, there is NO consideration. Why? Because liking me more is not something that is recognized as having monetary value by our judicial system. It is not a promise that that can be enforced. So it’s lacking consideration and is not valid. Get it? Here’s another example of an agreement WITH consideration: in exchange for paying you $1,000, I promise not to sue you for the damage you did to my house. This time, I’m promising not to make a claim against you, even though I could. I’m giving up something of benefit in exchange for something valuable from you (i.e. money). There’s a real and fundamental exchange here so this agreement can be valid and enforceable.
So the consideration in a cohabitation agreement will be the mutual promises that the parties give each other. Sometimes you’ll also see the parties give each other a small sum of money (e.g. $1.00) as consideration for entering into the agreement.
The first part of the body of the agreement starts off with the definitions. Relevant terms are defined here for simplicity’s sake (to be used throughout the rest of the agreement). What kinds of terms get defined, you ask? The following are pretty common:
- Legislation, such as the Ontario Family Law Act and the Succession Law Reform Act;
- Cohabit or Cohabitation (what that means);
- Ownership of Property (what it includes); and
- Spousal Support (what it includes – e.g. based on legislation, common law, trust principles, etc.).
Now, in the next blog, I’ll get into discussing ownership and division of property (this assumes that the parties want their financial affairs to be unaffected by their cohabiting together).
Looking for an Ontario Cohabitation Agreement?
A Cohabitation Agreement is a domestic agreement between non-married adults who want to either avoid or create financial obligations that may arise from their cohabiting or eventual marriage. Our Cohab-O-Matic is like Turbo-Tax for creating an Ontario Cohabitation Agreement.
Without a Cohabitation Agreement, cohabiting couples may have to battle it out in court to determine their legal rights, entitlements and obligations.
You can read all about the rights and obligations that cohabiting couples have or don’t have (when compared to married spouses) here.
You can start the Cohab-O-Matic wizard by click on the “Get Started” button below:
The Cohab-O-Matic is an online questionnaire that takes users through a series of questions about their relationship to ultimately create a custom-tailored cohabitation agreement that is based on the laws of Ontario. It asks questions related to:
- The parties
- The children of the parties
- Date of cohabitation
- Description of significant financial assets, debts and other liabilities (required for a cohabitation agreement to be valid and enforceable)
- The home (ownership of the home, home expenses, leaving the home, selling the home, etc.)
- When the agreement will terminate
- Whether the agreement will become a marriage contract if and when the parties marry each other
- Estate entitlements
- Alternative dispute resolution (e.g. mediation, arbitration, etc.)
As you can see (or perhaps will see), the Cohab-O-Matic is VERY comprehensive and flexible. Once you’ve completed the online questionnaire, you can proceed to PayPal and then, when you’re done paying, you’ll be able to download your custom-tailored Will.
And here’s some more value that we bring to the table: you can edit your Cohabitation Agreement for a set period of time afterwards for FREE, you can read a comprehensive and regularly updated eBook about Cohabitation Agreements in Ontario (to better understand your legal rights and entitlements and how Cohabitation Agreements work and what they’re all about), and you can read the mandatory signing instructions at the end to make sure that enter into the Cohabitation Agreement properly.
And you can do all of these things by yourself with your spouse without the involvement of a lawyer or having to spend thousands of dollars on legal fees.