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.
According to section 1(1) of the Family Law Act, cohabitation is when individuals live in a conjugal relationship, whether not married or married. Cohabitation is an element of a common law relationship.
Two individuals do not have to live together in the same household to be considered cohabiting. The party that alleges that they were in the spousal cohabitation, has the onus to prove it. Molodowich v. Penttinen establishes that courts may consider the following factors in examining whether parties are in a common law relationship.
Housing
- Do the spouses live in the same house?
- Were there any other individuals residing in the home?
- Do the parties sleep in the same room?
Intimacy and Other Behaviours
- Did the couple engage in any intimate relations?
- Is there marital loyalty in the couple?
- Was there any communication on deep topics between each other?
- How were the feelings between the couple?
- Were both individuals present during mealtimes?
- When sickness or any issues were present in the home, did either individual within the couple help each other out?
- Were presents purchased by each spouse to give to each other during their relationship?
Daily Tasks
- Did each member of the couple assist with tasks such as cooking, laundry, household chores, and buying groceries
Friendships
- How did each spouse communicate with their own family and the other spouse’s family about the relationship. What was the conduct of those families towards each member of the couple?
- Did each spouse interact with their neighbours jointly or separately?
Community Perception
- How did the neighbours in the couple’s community perceive the relationship?
Finances
- How were the finances handled (ex: groceries)
- Was the couple’s relationship influenced by the economic agreement that was created?
Offspring
- If there are any children, how does each party interact with the child(ren)?
The circumstances in a relationship determine if the parties are in a common law relationship even if they do not live in the same household (Thauvette v. Malyon, [1996] O.J. No. 1356, 23 R.F.L (Ont. Gen Div.)). In Thauvette v. Malyon, the parties had an affair while living with other partners. After years of the affair, the woman left her partner and moved into the man’s home, though the woman and man maintained separate residences. Then, the man assisted in buying a house for the woman, in which he would reside four to five nights each week. The woman assisted the man with the daily farming tasks and domestic chores. Due to performing daily farm work, the purchase of the home by the man, residing in the same house for a significant period of time weekly, and engaging in intimate behaviours, these parties were considered common law spouses.
If you would like to learn more about whether you are in a common-law relationship as well as the rights and obligations of a common law partner, contact us at 905.707.3370.
