Fact Sheet: Domestic Contracts

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by Pamela Cross, LLB

There are three common types of domestic contracts that are permitted and regulated under Ontario's Family Law Act:

  • cohabitation agreements
  • marriage contracts
  • separation agreements

Each covers a different kind of situation, but they are all similar in that they allow people to "contract out" of Ontario family law.  In other words, in a properly prepared domestic contract, the people can make their own rules for their relationship or their separation, even if the law would have done something differently.

What is a cohabitation agreement?

A cohabitation agreement is written between two people who live together without being married.  It can set out all the elements of how the couple plans to handle their relationship and how they will deal with issues such as spousal support and division of property if their relationship ends.

A cohabitation agreement cannot make plans for custody of and access to the children.

If the couple marries after they have written a cohabitation agreement, it will become their marriage contract.

What is a marriage contract?

A marriage contract is the same as a cohabitation agreement, but it is written between two people either at the point they marry or some time during their marriage.

Both cohabitation agreements and marriage contracts may be especially important for women with a lot of property who are going into a relationship. They can use the domestic contract to protect their property and make sure they get to keep it if the relationship comes to an end.

What is a separation agreement?

A separation agreement addresses all the issues that arise when a relationship (either marriage or common law) ends, including division of property, spousal support, child support and custody and access.

What makes a domestic contract legal?

Any clause of a domestic contract relating to children must be in the best interests of the child or it can be set aside by the court.  This relates to custody, access and child support. 

In order for a domestic contract to be legally binding and enforceable, it must meet certain conditions:

  • each person must provide all their financial information to the other
  • each person must understand fully the nature and consequences of signing the contract
  • there must be no coercion or duress to get someone to sign the domestic contract

Domestic contracts allow people to contract away their legal rights, which can have enormous implications.  For this reason, although it is not required by law, it is very important for anyone entering into a domestic contract to get independent legal advice.

This is especially true for a woman who is in a relationship with an abusive partner or a woman who is unfamiliar with her rights under Canadian family law.

Can the courts help?

Courts can set aside a domestic contract if the conditions noted above are not met, but they are generally reluctant to interfere in private contracts entered into by adults.

The Supreme Court of Canada has established clearly that adults can sign away their legal rights, even if this causes them hardship or leads to an unfair outcome, as long as the contract met the minimal requirements set out above.  The Supreme Court has said that courts should only intervene in extreme circumstances.

People can register their domestic contracts with the court, which will give them the full force of the law should either party need to have any section of the contract enforced in the future.

For example, a woman may enter into a separation agreement with her spouse in good faith, but after a couple of years he may simply stop paying the child support they have agreed upon.  If she registers the separation agreement, she can have the child support clause enforced through the Family Responsibility Office, just as if it were an order of the court.

This Fact Sheet contains general legal information only.  It is not a legal document, nor is it a replacement for legal advice.  Anyone in a situation involving family, immigration or refugee law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes.  A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.

For information about finding a lawyer in your community, contact Legal Aid Ontario at 1 800 668 8258 or 417 979 1446.

You can also visit Legal Aid Ontario online at www.legalaid.on.ca