Q#1: What is a Cohabitation Agreement?
In Ontario, a Cohabitation Agreement is a written agreement entered into between two adults who are not married to each other and who are cohabiting together (i.e. living in the same place in a conjugal relationship and they may or may not have children together).
Q#2: Why do I need a Cohabitation Agreement?
A Cohabitation Agreement is used by adults who want to create or AVOID creating financial obligations to one another that may arise as a result of their cohabiting together. Such financial obligations may arise from statute (e.g. if the cohabiting couple become “spouses” under the Family Law Act, then there may be SPOUSAL SUPPORT obligations on one of the spouses). These financial obligations may also arise based on the principles of equity. To avoid these financial claims and get releases, the parties will need to enter into a Cohabitation Agreement.
Q#3: Do I need a lawyer?
Technically, the Family Law Act (the legislation that governs Cohabitation Agreements in Ontario) does not require that cohabiting couples retain a lawyer to prepare, negotiate or finalize a Cohabitation Agreement. The adult couple can do this on their own. The final Cohabitation Agreement DOES NOT need to be witnessed by a lawyer or even notarized (i.e. a true copy made from the original). That said, it is always RECOMMENDED that a lawyer get involved at some stage in order to:
- Review the customizations that the parties have drafted to ensure clarity, comprehensiveness, and legality;
- Provide a certificate of independent legal advice; and
- Commission the affidavit of the witness (a witness is required to be present and sign the Cohabitation Agreement).
How much does a lawyer cost you ask? Well, to do EVERYTHING from start to finish, each party is looking at spending at least $3,000-$7,000 I’m told (anecdotally from people who have reached out to lawyers to find out). But if you purchase a kit, do it yourself and have a lawyer such as Victor Nikitine do the aforementioned things for you, you’re looking at spending less than a thousand dollars (give or take) by the time you’re done.
Q#4: How can a Cohabitation Agreement be challenged?<
All legal agreements – regardless of whether a lawyer prepared it or not – can be challenged by a party. There’s nothing stopping someone from suing – even if they have no chance of succeeding. When it comes to Cohabitation Agreements, they can be challenged and rendered invalid and unenforceable in whole or in part on the following grounds (among others):
- The Cohabitation Agreement was too vague, too incomplete, and too uncertain to be enforceable;
- One of the parties was under duress, undue influence, entered the agreement based on a misrepresentation, or the agreement was the result of an unconscionable bargain; or
- Insufficient financial disclosure was made.
Having a good working template, some guidance, and a lawyer on your side can help mitigate these claims from the get go. You can read more about these and other types of claims in the DL Guide that comes with the Cohabitation Agreement.
Q#5: How do I make financial disclosure?
Luckily, we provide you with a Schedule in this regard. The Schedule identifies a fairly comprehensive list of examples of the types of things you can disclose when it comes to financial disclosure. You can disclose what’s relevant to your situation and disregard the rest.
Q#6: What are the legal requirements to have a Cohabitation Agreement?
Cohabitation Agreements must be in writing, signed by the parties, and witnessed. They can only deal with certain things (e.g. spousal support, ownership and division of property) and not others (e.g. child support). They must be entered into properly (i.e. no duress, undue influence, misrepresentation, etc.). They must also be clear and comprehensive enough to be capable of interpretation and enforcement. Finally, the parties must make disclosure of their significant assets and liabilities to the other side.
Q#7: How is the home dealt with?
When it comes to homes, you need to think along two lines: ownership and possession. Ownership refers to who owns the home the couple is living in. Possession means who has the right to stay in the home, regardless of who owns it. Now, there are no rules that automatically force an adult in a cohabitation relationship to share OWNERSHIP OF THEIR HOME with the other person. This differs from marriage, where (unless there’s a prenuptial agreement, marriage contract or separation agreement that says otherwise), the net increase of the value of the home during the course of marriage gets INCLUDED in net family property – which is eventually equally divided among the divorcing couple. Since cohabiting couples don’t have their property automatically divided according to this regime, they don’t generally have automatic rights or interests in the home they live in – unless they are the LEGAL OWNERS on title or otherwise! Now, when it comes to possession, only married couples in Ontario have automatic rights to possess the home; the same is not true for cohabiting couples. Therefore, a cohabiting adult can ask (e.g. by providing notice) the other spouse to leave their property after a set period of time. So just remember: when it comes to the home, cohabiting couples need to think of ownership and possession.
Q#8: How can I get a Cohabitation Agreement?
One of our most POPULAR legal forms is our Cohabitation Agreement. It is lawyer-prepared, customizable, and comes with free guidance (a video tutorial and written guides).
Ontario Cohabitation Agreements
This Agreement can be used by parties in Ontario who wish to avoid creating financial obligations to each other when they live together. If you want to keep your income and assets yours during the term of your cohabitation and afterwards, you can use this legal form package. We offer two different types of legal form packages: one which terminates upon marriage and one which continues and becomes a prenuptial agreement / marriage contract when the parties marry each other: