Domestic Contracts

There are various contracts/agreements within family law that parties can create with each other before and after being in a relationship with one another. There are 4 main agreements that will be discussed in this blog post. These are the following:

1. Marriage contract/prenuptial agreement

2. Cohabitation agreement

3. Separation agreement

4. Parenting agreement

Marriage Agreement/Prenuptial Agreement

A marriage agreement or prenuptial agreement as it is sometimes called, is a domestic contract that is governed by Ontario’s Family Law Act. Parties may decide to create and sign a marriage agreement depending on their financial circumstances, and property arrangements. If a contract is not created, then at the time of separation, Ontario laws regarding property and support will come into play and parties may have to negotiate other arrangements if they do not wish for their issues to be resolved in this manner. When preparing a marriage contract, both parties will need to exchange financial disclosure. This includes information on income, assets,

and liabilities, and will require disclosure as evidence. Under certain circumstances, the court may rule that the contract can be set aside. If a party fails to disclose significant assets or liabilities at the time the contract was formed, then the contract may be deemed as unenforceable. It is also important to note that there are certain areas that may not be enforceable, such as child support. If terms of the agreement become unconscionable, this may also allow for a court to set aside the provisions. An example of this may be a provision that removes spousal support. If the parties agree that spousal support shall not be provided by one party to the other, the court may determine that this is unconscionable based on the circumstances of the parties at the time.

If parties agree that a marriage contract is a step that they would like to take, it is important to note that each party will need to get independent legal advice on the contract. Although one party’s lawyer may prepare the contract, it is necessary for the other party to get advice from their own lawyer. A lawyer can help clarify the rights each party has in the marriage, and can ensure that the party understood what they were signing at the time.

Cohabitation Agreement

A cohabitation agreement is similar to a marriage agreement, except it is for individuals in a common-law relationship or who are unmarried and plan to reside with one another. To be a common law partner, the parties must have been living continuously together in a conjugal relationship for at least 3 years, or have a child together. Much like a marriage agreement, a cohabitation agreement allows for the parties to determine the rights they will have at the end of their relationship. This agreement can set out property matters and support obligations at the end of the relationship. Similar to a marriage agreement, the cohabitation agreement cannot set out

the rights of parenting time and decision-making responsibility regarding children.

Common-law relationships are not bound by the Family Law Rules, and common law couples have no protective statutory provisions. The only argument that a party may have is to rely on equable remedies and prove that the other party has been unjustly enriched. However, having a cohabitation agreement allows for the parties to protect themselves and provides them with the freedom to decide their rights if the relationship comes to an end.

Separation Agreement

A separation agreement is an agreement made by parties who are separating which dictates how the parties will resolve their issues when separated. Separation agreements may be made by parties who are in a common-law relationship or married. Separation agreements may be made at any time after the parties separate, however there are time limitations when dealing with certain aspects of the relationship such as division of property. Separation agreements are used as a faster and cheaper way to resolve issues as opposed to going to trial. It also allows for the parties to decide how to resolve their own affairs as opposed to a judge determining their affairs. The parties may make decisions on division of property, support obligations, parenting time and decision-making responsibility of the children, and any other matters they deem necessary.

Much like the marriage contract, it is important that parties obtain independent legal advice to ensure that their rights and obligations are being protected and followed. Separation agreements may be set aside if deemed unconscionable, and therefore it is important to ensure that parties are aware of what they are signing and speak to a lawyer beforehand.

Parenting Agreement

A parenting agreement is a document that identifies how parents will raise their children after they are separated or divorced. There are different types of decision-making responsibility options such as sole decision-making responsibility, joint decision-making responsibility, or split decision-making responsibility. Decision-making responsibility refers to the parent making fundamental decisions regarding the upbringing and health of a child, and the right to make all final decisions. Parents will also have to determine the parenting time arrangement which is the right to spend time with the child for a certain period. During this time the parent is responsible

for the child, the parent also has the right to make inquiries and be granted information on the health, education, and well-being of the child. The decision-making responsibility and parenting time are based on the best interests of the child, which is a legal test that must be utilized.

Signing any contract can have serious implications, and it is important to seek professional advice when required. To note, the above should not be taken as legal advice, and if you have any questions or concerns about your case please speak to a lawyer. To find out how we can help you with your matter, please visit our website at https://www.grantleelaw.ca/ or call us at 905-315-6837 to book your consultation now.