In Ontario, couples become “common law” once they have lived continuously together for a period of three years, or, if they are parents of a child, "in a relationship of some permanence”.
Common law spouses (just like married spouses) have a legal obligation to support one another, in accordance with need, to the extent that they are capable of doing so. This means that in the event of a breakdown of the relationship, there is the same spousal support obligation to the common law partner as if the parties were married.
Common law spouses do not have the automatic right to split the family assets upon separation or to divide the family residence. If your name is not on the legal title to the family residence, you may be at risk of being required to leave the property in the event of a separation or death of a partner.
This may not accord with your commitments to each other in the relationship and a properly drafted cohabitation agreement can ensure that unexpected results do not occur on a breakdown of the relationship. A cohabitation agreement can set certain legal boundaries to the relationship, including spousal support obligations and rights or interests in family assets in the event of separation or death.
The agreement needs to be properly drafted. The court can aside provisions of domestic contracts in certain situations, such as where one party misrepresented his or her financial position at the time of executing the agreement or where a party did not have adequate representation. The court may also set aside terms that are not in the best interests of a child of the relationship, or that include otherwise unconscionable provisions.
Like cohabitation agreements, marriage contracts are permissible under Ontario law. You and your partner can enter into a marriage contract to address support obligations and what happens to property in the event of separation.
Day+Borg LLP can help you negotiate and draft a cohabitation agreement or marriage contract to protect your rights and preserve your understanding of the relationship.