Ontario Cohabitation Agreements (Part 3) – Independent Legal Advice, Setting it Aside, and Termination…

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 drafting, negotiating, or resolving a dispute concerning a cohabitation agreement in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Legal Forms who can offer information, advice, and assistance with respect to a cohabitation agreement.

As a follow up to my recent blog on how Cohabitation Agreements in Ontario can be challenged, in this blog I’ll be discussing three interesting topics: (1) the requirement for independent legal advice, (2) what happens if a Cohabitation Agreement is set aside, and (3) how can a Cohabitation Agreement be terminated.

Is Independent Legal Advice Required?
Independent legal advice is not a formal requirement under the Family Law Act (or under the common law) to have a valid and enforceable Cohabitation Agreement. That said, its presence helps to eliminate (except in the most exceptional circumstances) the ability for one party to have a court set aside the Cohabitation Agreement on the basis that it did not understand “the nature or consequences of the [Cohabitation Agreement]” or to set it aside “otherwise in accordance with the law of contract”. Basically, having an independent lawyer gives the impression that the lawyer’s knowledge and understanding is transferred to the party (because of the solicitor-client relationship and because it makes common sense). If it didn’t mean that, then the idea of having independent legal advice would be meaningless. One other thing: it is best not to have a party or their lawyer recommend a lawyer for the purpose of obtaining independent legal advice.

What happens if a Cohabitation Agreement is set aside?
If a court sets aside a Cohabitation Agreement, then that agreement will not govern upon the termination of the parties’ relationship. So what could govern the ownership or division of property and support obligations? To begin, the Family Law Act could apply. Granted, that Act does not address the issue of ownership or division of property for cohabiting parties. That said, if the parties are not married and have cohabited continuously for a period of at least 3 years, then the spousal support obligations may be imposed. Those obligations could also arise if the parties to a Cohabitation Agreement are not married and have cohabited in a relationship of some permanence and are the natural or adoptive parents of a child. With respect to ownership or division of property, one of the parties may be able to assert a right based on the doctrine of CONSTRUCTIVE TRUST. A constructive trust is essentially a trust created by a court to benefit a party that has been wrongfully deprived of its rights. Courts may look at the pre-existing proprietary rights of the parties prior to the dispute to determine whether a constructive trust is an appropriate remedy. Historically, courts have been reluctant to impose a constructive trust in the family law context absent clear evidence and strong arguments to the contrary. Finally, if the cohabitation ends because one of the parties dies, then the Succession Law Reform Act could impose support obligations on the deceased party’s estate. That Act could apply if the parties were spouses (as defined above under the Family Law Act) and the deceased spouse was providing support or was under a legal obligation to provide support immediately before his or her death. Here, if the deceased spouse has not made adequate provision for the proper support of the remaining spouse, the latter could apply to the court for proper support.

When does a Cohabitation Agreement terminate?
A Cohabitation Agreement generally provides for the circumstances under which it terminates. These circumstances could include, for example:

  • the parties marrying each other;
  • one or both of the parties die;
  • the parties cease to cohabit with each other (as defined in the Cohabitation Agreement);
  • the parties marry each other and enter into a separate written Marriage Contract; or
  • after a set period of time or on a particular date.

Interestingly, the Ontario Family Law Act provides that if the parties to a Cohabitation Agreement marry each other, that Cohabitation Agreement (assuming it does not terminate on marriage) “shall be deemed to be a marriage contract”: s. 53(2). But remember: so long as a Cohabitation Agreement deals with a matter that is also dealt with under the Family Law Act, the Cohabitation Agreement will prevail (unless the Family Law Act says otherwise). What does this all mean? Well, unless the Cohabitation Agreement is silent or the parties agree otherwise, a Cohabitation Agreement is not automatically canceled when two cohabiting parties get legally married.

In case you’re looking for a cohabitation agreement that does not create any financial obligations or rights during or after cohabitation and which terminates upon marriage, then look no further:

Cohabitation Agreement (Ontario) – Terminates Upon Marriage

This Agreement can be used by parties who are cohabiting or who intend to cohabit and want to define their respective rights and obligations concerning support, property, the moral education of children, etc. THIS Agreement terminates upon marriage. If you are looking for a Cohabitation Agreement that does not terminate upon marriage but which essentially becomes a Marriage contract, then you can purchase one of these types of Cohabitation Agreements (Ontario) at Dynamic Legal Forms.

All of Dynamic Legal Forms‘ legal forms are lawyer-prepared, simple to read, easy to customize, and only a fraction of the price a lawyer would charge. Also, each legal form comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that sheds valuable insight into how legal forms can be challenged. What are you waiting for? Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

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wendy April 13, 2010 at 7:13 pm


I have a question about your legal form. In your legal form, do you have
a provision written down about no division of private pension under SPOUSAL support? or since it says no spousal support, it automatically imply that no party should apply for the division of the private pension after the breakup? Please reply.



admin April 13, 2010 at 8:29 pm

Hi Wendy,

Thanks for your email. Right now, here’s how the Ontario Cohabitation Agreement package deals with pension plans. First, pension plans are included in the definition of “Property”. Second, a party’s “Property” is, during and after the term of Cohabitation (i.e. in the event of termination), to remain their own property and not the other party’s. Third, there is a release of claims by each party to the other party’s “Property”. Finally, pensions are included in Schedule “A” (list of financial documents and information which must be provided as part of entering this agreement). This helps to prevent against challenges based on the idea that pension assets were not fully disclosed prior to entering into the agreement. If, after all of this, you’re still concerned about whether pensions are kept separate and whether the other party can claim an interest in your pension, you can simply insert another clause that says something to the effect that no party has any right to or interest in the other party’s pension, shall release the other party from any claims concerning their pension, etc.

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