Cohabitation Agreements
Cohabitation Agreements – Generally:
Two individuals who cohabit and are not married can enter into a cohabitation agreement. These agreements can include (section 53(1) of the Family Law Act):
- division of property
- support
- to assist and guide a child's schooling and moral training
These agreements should not include terms on decision making for children or parenting time.
In Knight v. Gottsman on separation of the parents, the mother tried to move the children from Massachusetts to Toronto, while the father lived in the former location. The father had allowed the mother to take a trip to Ontario with the children for a visit. After arriving the mother told the father that she would not be returning with the children. Even though the parties agreed to give the mother “veto” to move the children to Ontario, this was not determinative of the issue. Parents cannot contract out of a court’s obligation to determine a child’s habitual place of residence under the Hague Convention. Ultimately, the court ordered the children to move back to Massachusetts.
Cohabitation agreements are enforceable after the couple separates and the cohabitation period ends, or one individual passes away.
What Happens to A Cohabitation Agreement if the Couple Marries:
If a cohabiting couple marries, then the terms of the cohabitation agreement continue, and the agreement is deemed to be a marriage contract.
Reconciling After Couple Separates:
Cohabitation agreements should indicate what happens to the agreement if the couple separates and then reconcile. The agreement should clarify the party’s objectives: Do they want the agreement to continue if there is a separation and then reconciliation? Determining this often depends on the provisions in the agreement itself.
If you would like to know more about Cohabitation Agreement, contact us at 905.707.3370.
