Cohabitation & Marriage
Howard Nightingale has successfully practiced Corporate and Commercial law in Toronto since 1982.
What is cohabitation in Ontario?
Cohabitation: In the Ontario, Family Law Act “common law spouses” means persons who, though not legally married to each other, have lived together continuously for a period of at least three years. This also includes persons who are the natural or adoptive parents of a child and have lived in a relationship of some permanence (even if less than three years). These definitions include same-sex partners.
Custody of and access to children born to a common-law couple are treated exactly the same as for married couples married. The focus is always on the best interests of the child. Child support and spousal support are calculated the same way for common law spouses as they are for legally married spouses.
What is marriage?
Marriage: In June 2003, the Ontario Court of Appeal redefined the common law definition of marriage as the “voluntary union for life of two persons to the exclusion of all others.” Under Ontario law, marriage requires persons to have participated in a ceremony or form of marriage that is recognized as valid in Ontario.
Marriage, Divorce and Same-sex spouses
As a result of the Court of Appeal’s decision in 2003, marriages between same-sex couples are legal in Ontario. In July, 2005, the federal government also amended the Divorce Act (Canada) to allow married same-sex spouses to obtain a divorce.
Remarriage and Foreign Divorce
If the client intends to re-marry but was previously divorced outside of Canada, Ontario law requires the client to obtain a letter of opinion from a family law, lawyer regarding the recognition of his or her foreign divorce. Howard Nightingale Professional Corporation will be happy to provide our client with our legal opinion and reasons why your divorce should be legally recognized in the Province of Ontario.
Opinion Letter for Recognition of Foreign Divorces for Marriage in Canada
People who wish to marry in Ontario and who have previously divorced outside of Canada (whether one or both partners), are required to have the divorce reviewed and recognized for purposes of determining their marital status in Canada. An additional authorization must be obtained from the Ontario government, and this authorization must be presented before the marriage license is issued. In order to obtain this authorization, the following documentation must be submitted to the Office of the Registrar General:
- Original or court-certified copy of each divorce decree. When the decree is in a language other than English or French, a certified translation is also required;
- Letter of opinion from an Ontario lawyer that each divorce decree would be recognized in Ontario;
- Marriage License Application;
- Statement of Sole Responsibility, which states that the validity of a foreign divorce remains the responsibility of the license applicant, and that the Ontario government assumes no responsibility if the foreign divorce turns out to be invalid.
- The presence of a prior, foreign divorce lengthens the time required to obtain a marriage license in Ontario by several months.
To prepare the Letter of Opinion, a lawyer requires the following:
- An original or court-certified copy of each of the original decrees of divorce, and a certified translation of these documents;
- Information about the jurisdiction (state) of residence of each of the parties to the divorce at the date the divorce was granted;
- Information about the length of time the parties to the divorce had been ordinarily resident in that jurisdiction immediately prior to the date of application for divorce; and
- A Marriage License Application, signed by both parties.
Canada will now recognize a foreign divorce if either party to the divorce was ordinarily resident in the foreign jurisdiction for one year preceding the application for that divorce. This scope of recognition applies to all divorces granted after February 13, 1986.
If your situation doesn’t exactly match this description, don’t despair. In the opinion letter a lawyer will analyze the person’s unique circumstances and apply not only current legislation, but also case law. For example, there are many situations in which people might not have been consistently resident in their jurisdiction, yet a case can be made that they still can be said to have a “real and substantial connection” to this jurisdiction.
Marriage & Cohabitation Agreements (Domestic Contracts)
Marriage Agreement/Contract (also called Pre-nuptial Agreement):
Marriage Agreements can be entered into by people who intend to marry or people who are already married. Clients with real property (that is, a house, condominium, cottage or commercial property) or with a significant amount of other assets, or who want to handle future financial issues in a predetermined way, should consider preparing a Marriage Agreement.
Without a Marriage Agreement, if a relationship breaks down, you as the spouse with more property will find that it is divided according to Ontario law, resulting in your spouse receiving property that neither of you intended for your spouse to have (see Property Division and Equalization for greater discussion of this topic). A properly drafted Marriage Agreement can settle the mutual intention that you both have prior to your marriage. Howard Nightingale has the experience to help you prepare a Marriage Agreement in accordance with your instructions, while fulfilling all of your legal requirements.
Cohabitation Agreements
When making the decision to cohabit (or live) with someone, people often do not consider the legal effect that this might have. Your cohabiting partner might be entitled to a portion of your property or to your financial support if the relationship dissolves. If you do not intend for your partner to receive a division of your property or spousal support, you should consider preparing a Cohabitation Agreement. Howard Nightingale Professional Corporation has the experience to help you prepare a Cohabitation Agreement in accordance with your instructions and all legal requirements.
Separation Agreements
The most common domestic contract negotiated between couples is a separation agreement. To enter into a separation agreement, you and your partner must have cohabited and must now be living separate and apart. However, couples who continue to live under the same roof may still be considered to be living separate and apart if they are living independent lives.
Separation agreements deal with custody and access to children, financial support arrangements, division of property, and estate considerations. However, please be aware that family court can disregard provisions in a separation agreement regarding children where it is deemed in the best interest of the children to do so.
Whether it is a marriage contract, cohabitation agreement or separation agreement, to be considered a valid domestic contract in Ontario, it must meet the following conditions:
- The domestic contract must be in writing, signed by both parties and their signatures witnessed by other persons.
- Both parties must participate in the negotiation of the terms in the domestic contract and have reasonable time to consider these terms without being. pressured to sign because of an imminent deadline (such as the wedding date set to occur just a few days away).
- Both parties must enter into the domestic contract voluntarily, without fear, threats, duress or influence by the other.
- Both parties must understand the terms of the domestic contract and how such terms can affect them in future; to do so, both parties should have independent legal advice from separate lawyers to explain the terms of the domestic contract and their respective rights and obligations under family law.
- Both parties must provide full disclosure of their circumstances, including all information regarding their finances.
- The domestic contract must be reasonable and fair, taking into consideration the parties’ individual circumstances.
- Amending or Setting Aside Domestic Contracts.
If you have already entered into a domestic contract, but you have concerns about its fairness or validity, Howard Nightingale can review your existing domestic contract and advise you of your options. You may wish to amend the domestic agreement between you and your spouse or have the domestic contract set aside by the court.
If you and your spouse wish to amend the domestic agreement, under appropriate conditions Howard Nightingale can prepare a written amending document, revising the terms of the domestic agreement.
If your spouse is not agreeable to voluntarily amending the domestic contract, an application may be made to the Family Court to set aside the domestic contract for any one of three reasons:
- one party has failed to disclose to the other significant assets or debts that existed at the time the contract was entered into
- one party did not understand the nature or consequences of the contract, and did not have independent legal advice before signing, or
- for general reasons under contract law, such as undue influence, mistake, misrepresentation, etc.
The family court can set aside the domestic contract if the terms of this domestic contract result in unconscionable (unreasonable) circumstances for either party.
Due to the court’s power to set aside agreements, parties should not enter into agreements for which there has been little or no financial disclosure. In addition, parties should be wary of signing a domestic contract when one party refuses to obtain independent legal advice from a lawyer, regarding his or her rights and obligations under the contract.
Frequently Ask Quetions
In Ontario, the definition of “common-law spouse” varies depending on which law applies. Under the Ontario Family Law Act, a person is considered a common-law spouse if they have cohabited continuously for at least three years, or if they are the natural or adoptive parents of a child and have lived together in a relationship of some permanence (even if less than three years). Under the federal Income Tax Act and for Canada Revenue Agency (CRA) purposes, a person is considered a common-law partner after 12 months of continuous cohabitation, or immediately if they have a child together. For spousal support purposes under the Family Law Act, the three-year threshold (or child together) must be met. For child support and parenting purposes, the length of cohabitation is irrelevant — the obligations arise from parenthood, not the length of the relationship. This patchwork of definitions is one of the most common sources of confusion for Ontario couples — and one of the strongest arguments for having a cohabitation agreement that defines the couple’s rights and obligations explicitly, regardless of which legal threshold applies.
In Ontario, a cohabitation agreement can and should address the family home — particularly because common-law partners do not have the same automatic rights to the matrimonial home as married spouses. Married spouses have an equal right to possession of the matrimonial home under the Family Law Act regardless of whose name is on title, and neither spouse can sell or mortgage the home without the other’s consent. Common-law partners have no such protection — the partner whose name is not on title has no automatic right to remain in the home. A cohabitation agreement can address: who owns the home; what happens to the home if the relationship ends (sale, buyout, or continued occupation); how any increase in value will be shared; and whether a partner who is not on title will acquire any interest in the home over time. For couples where one partner owns the home and the other moves in, this is one of the most important provisions to address in a cohabitation agreement.
In Ontario, a cohabitation agreement does not need to be notarized, but it must meet the formal requirements set out in Section 55 of the Family Law Act to be valid. Specifically, the agreement must be: (1) in writing; (2) signed by both parties; and (3) witnessed — each party’s signature must be witnessed by a separate person. The witnesses do not need to be lawyers, but they cannot be the other party to the agreement. While notarization is not required, having each partner obtain independent legal advice (ILA) from a separate lawyer before signing is strongly recommended. ILA is not a legal requirement, but its absence is one of the most common grounds on which courts set aside domestic contracts. A lawyer providing ILA will sign a certificate confirming that they explained the agreement to their client, which provides significant protection against a future challenge.
In Ontario, a cohabitation agreement can be set aside by a court under Section 56 of the Family Law Act in the following circumstances: (1) a party failed to disclose significant assets or debts before signing; (2) a party did not understand the nature or consequences of the agreement; (3) the agreement was signed under duress, undue influence, or coercion; or (4) the agreement is otherwise unconscionable — meaning it is so one-sided as to be fundamentally unfair. Courts have also set aside agreements where one party did not have independent legal advice and did not understand what they were signing. The best way to protect a cohabitation agreement from being challenged is to ensure both partners receive independent legal advice from separate lawyers, that both partners make full financial disclosure, that neither partner is pressured to sign on a tight deadline, and that the agreement is properly witnessed. An agreement signed the night before moving in together, without legal advice, is far more vulnerable to challenge than one negotiated over several weeks with both partners represented.
In Ontario, the cost of a cohabitation agreement depends on the complexity of the couple’s financial situation and whether the agreement is negotiated or contested. For a straightforward agreement between partners with modest assets, costs typically range from $1,500 to $3,000 per partner (each partner should have independent legal advice from a separate lawyer). For more complex agreements involving significant property, business interests, or investment portfolios, costs can range from $3,000 to $10,000 or more per partner. These figures include the drafting lawyer’s fees and the independent legal advice (ILA) fee for the other partner’s lawyer. While these costs may seem significant, they are a fraction of the cost of litigating a property dispute on separation — which can run from $30,000 to $100,000 or more. Howard Nightingale Professional Corporation offers cohabitation agreement services for Toronto and North York clients, with fees discussed transparently at the outset of the retainer.
In Ontario, a comprehensive cohabitation agreement should address the following key areas.
Property ownership: which assets each partner owns separately, how jointly acquired property will be divided, and whether any property will be excluded from division.
Debt responsibility: which debts each partner is responsible for and how joint debts will be handled on separation.
Spousal support: whether either partner will be entitled to support on separation, and if so, in what amount and for how long — or whether the right to support is waived.
The family home: what happens to the home on separation, particularly if only one partner is on title. Estate rights: what each partner is entitled to if the other dies.
Dispute resolution: how disagreements about the agreement will be resolved.
Conversion clause: whether the agreement will automatically become a marriage contract if the couple marries. The agreement should also include a full financial disclosure schedule — a list of each partner’s assets and debts at the time of signing — because failure to disclose can be grounds for setting the agreement aside.
In Ontario, common-law partners have significantly fewer automatic legal rights than married spouses — a fact that surprises many couples. The key differences are as follows. Married spouses are entitled to equalization of net family property under the Family Law Act, meaning the spouse with more property must pay the other half the difference in value accumulated during the marriage. Common-law partners have no such automatic right — each partner keeps the property in their own name. Married spouses have an equal right to possession of the matrimonial home regardless of whose name is on title. Common-law partners have no such right — the partner whose name is not on title can be asked to leave. Both married and common-law partners (after three years of cohabitation, or earlier if they have a child together) may be entitled to spousal support under the Family Law Act. Child support and parenting arrangements are treated identically for both married and common-law couples. The practical consequence is that a common-law partner who contributed years of unpaid domestic labour, career sacrifice, or financial contribution to a jointly-built life may walk away with nothing — unless they can prove unjust enrichment in court.
In Ontario, a cohabitation agreement applies to couples who are living together without being married, while a marriage contract (also called a prenuptial agreement) applies to couples who are married or intending to marry. Both are forms of domestic contracts governed by Part IV of the Family Law Act and must meet the same formal requirements to be valid. The key practical difference is timing and the legal context in which they operate. A cohabitation agreement addresses the property and support rights of common-law partners, who have significantly fewer automatic legal protections than married spouses. A marriage contract, by contrast, modifies the default property division rules that apply to married spouses under the Family Law Act‘s equalization regime. Importantly, a cohabitation agreement can automatically convert into a marriage contract if the couple later marries — this conversion provision should be explicitly included in the agreement if the couple anticipates eventually marrying.
In Ontario, a cohabitation agreement is a legally binding domestic contract between two people who are living together or planning to live together outside of marriage. It is governed by Section 53 of the Family Law Act. The agreement sets out each partner’s rights and obligations regarding property ownership, financial support, and debt responsibility — both during the relationship and in the event of separation. A cohabitation agreement is particularly important for common-law couples because, unlike married spouses, common-law partners in Ontario have no automatic right to property equalization under the Family Law Act. Without an agreement, a partner who contributed financially or through unpaid labour to the other’s property may have to pursue an expensive court claim based on unjust enrichment or constructive trust — a process that can cost $30,000 to $100,000 in legal fees. Any couple who owns property together, has significantly different asset levels, or has children from a previous relationship should strongly consider a cohabitation agreement.
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