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Cohabitation Agreement Lawyer in Fergus

Ontario law does not divide property between unmarried partners when they separate. Each partner keeps what is in their own name, so a partner who has paid toward a house or farm held by the other has no automatic share of it. A cohabitation agreement is a written contract that records what each partner keeps and what happens to the home, support, and other property if the relationship ends or one partner dies.

Couples in Fergus, Elora, and across Wellington County can sign a cohabitation agreement before moving in together or at any point while living together. Call Foote Law in Fergus at 519-772-6139.

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How Foote Law Can Help With
Cohabitation Agreements in Fergus

Foote Law acts for either partner on a cohabitation agreement, including:

  • Drafting an agreement before or after the partners move in together.
  • Reviewing an agreement prepared by the other partner’s lawyer and giving independent legal advice on it.
  • Setting terms where one partner owns the house, farm, or rural property and the other contributes to it.
  • Fixing ownership shares and buy-out terms for a home bought together.
  • Reviewing and updating the agreement before the couple marries.

Every file is handled by a lawyer and a law clerk, with the clerk preparing disclosure and documents at a lower hourly rate. Meetings take place in person at the Fergus office, by phone, or by video. Foote Law accepts Employee Assistance Program referrals. Call Foote Law in Fergus at 519-772-6139.

What Unmarried Partners Are
Entitled To Without an Agreement

The Family Law Act treats married and unmarried couples very differently. The gaps described below are what a cohabitation agreement is designed to fill.

01

Property and the Home

When married spouses separate, they share the growth in their wealth during the marriage through equalization of net family property under Part I of the Family Law Act, and each has rights to the matrimonial home under Part II. Neither Part applies to unmarried partners. Without an agreement, each partner keeps the property in their own name. A partner who contributed to the other’s house or farm must prove a claim in trust or unjust enrichment, which means showing that the other partner was enriched by the contribution without a legal reason to keep the benefit. The Supreme Court of Canada set out how these claims work between unmarried partners in Kerr v Baranow, 2011 SCC 10. Those claims are heard only in the Superior Court of Justice, which for Fergus sits in Guelph.

02

Jointly Owned Property

When unmarried partners who own a home together separate, either one can apply under the Partition Act for a Court order that the home be sold. Title also decides what happens when one partner dies. A home held as joint tenants passes automatically to the survivor, while a share held as tenants in common forms part of the deceased partner’s estate. An agreement can set each partner’s share and give one partner the right to buy the other out.

03

Spousal Support

Unmarried partners can still claim spousal support. Under section 29 of the Family Law Act, a partner can claim support after the couple has lived together continuously for at least three years, or sooner if the relationship is one of some permanence and the partners are the birth or adoptive parents of a child. A cohabitation agreement can limit or waive spousal support. Under section 33(4), however, the Court can set that term aside where it results in unconscionable circumstances, where the partner entitled to support qualifies for public assistance, or where the other partner defaults on support payable under the agreement.

04

Children

Under section 31 of the Family Law Act, every parent owes child support whether or not the parents were married, and decision-making responsibility and parenting time are decided on the child’s best interests. Section 53(1) does not allow a cohabitation agreement to settle decision-making responsibility or parenting time. Under section 56(1.1), the Court can also disregard child support terms that are unreasonable having regard to the Child Support Guidelines.

What a Cohabitation Agreement
Can Cover

Under section 53(1) of the Family Law Act, two people who are not married to each other and who live together, or intend to, can agree on their rights and obligations during the relationship, on separation, and on death. That includes ownership and division of property, support, the right to direct the children’s education and moral training, and any other matter in settling their affairs. Under section 2(10), the agreement prevails over the Act on any matter it deals with, unless the Act provides otherwise. Common terms include:

  • Who owns the home, and each partner’s share if it was bought together.
  • Credit for mortgage payments, renovations, or farm work contributed to the other partner’s property.
  • What each partner brought into the relationship, including a farm, business, or inheritance.
  • Responsibility for debts in each partner’s name.
  • Whether spousal support is payable, and for how long.
  • A release of trust and unjust enrichment claims against each other’s property.

When One Partner Dies
& If the Couple Later Marries

When One Partner Dies

An unmarried partner inherits nothing when the other partner dies without a will. The intestacy rules in the Succession Law Reform Act apply only to married spouses, and the election for an equalization payment under section 6 of the Family Law Act is not available to unmarried partners.

A surviving partner is not left entirely without recourse. A partner who meets the section 29 test, and whom the deceased was supporting or was legally obliged to support immediately before the death, can apply for dependant support from the estate under Part V of the Succession Law Reform Act. The application must be made within six months of the estate trustee’s appointment; after that, the Court may allow a claim only against estate property not yet distributed. Each partner’s will should be made or updated to match the agreement, so that the estate passes as the partners intended.

If the Couple Later Marries

Under section 53(2), a cohabitation agreement is deemed to be the couple’s marriage contract once they marry. Marriage brings equalization and matrimonial home rights that the agreement may not address. Section 52(2) also makes unenforceable any term in a marriage contract that limits a spouse’s rights under Part II, including the right to possession of the matrimonial home. Housing terms written for an unmarried couple can therefore stop working once the couple marries, and the agreement should be reviewed before the wedding.

Enforceability

Making the Agreement
Enforceable

Under section 55(1) of the Family Law Act, a cohabitation agreement is unenforceable unless it is in writing, signed by both partners, and witnessed. Even a properly signed agreement can be challenged. Under section 56(4), the Court can set aside the agreement, or any term in it, where:

  • A partner failed to disclose significant assets, or significant debts or other liabilities, that existed when it was signed.
  • A partner did not understand the nature or consequences of the agreement.
  • The law of contract otherwise allows it, such as where a partner signed under duress.

Full disclosure of each partner’s assets, debts, and income, and independent legal advice for each partner from a separate lawyer, provide strong evidence against the first two grounds.

Speak With a Fergus
Cohabitation Agreement Lawyer

Moving in together, or buying a home or farm together, is the best time to put terms in writing; an agreement signed early is far less costly than a contested trust claim after separation. The first consultation covers what each partner owns and contributes, and what the agreement needs to settle. It is billed at the lawyer’s hourly rate for the time spent. It helps to bring:

  • The deed or purchase documents for any home or farm.
  • Mortgage statements and records of payments or renovations each partner has made.
  • A list of assets and debts in each partner’s name.
  • Any existing wills.

Foote Law’s Fergus office is at 105 Queen Street West, Unit 14b, Office 103, and is open Monday to Friday, 8:30 a.m. to 4:30 p.m. Call Foote Law in Fergus at 519-772-6139.

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