Cohabitation & Marriage

What is cohabitation in Ontario?

Cohabitation: In the Ontario, Family Law Act “common law spouses” means persons who, though not legally married to each other, have lived together continuously for a period of at least three years. This also includes persons who are the natural or adoptive parents of a child and have lived in a relationship of some permanence (even if less than three years). These definitions include same-sex partners.

Custody of and access to children born to a common-law couple are treated exactly the same as for married couples married. The focus is always on the best interests of the child. Child support and spousal support are calculated the same way for common law spouses as they are for legally married spouses.

What is marriage?

Marriage: In June 2003, the Ontario Court of Appeal redefined the common law definition of marriage as the “voluntary union for life of two persons to the exclusion of all others.” Under Ontario law, marriage requires persons to have participated in a ceremony or form of marriage that is recognized as valid in Ontario.

Marriage, Divorce and Same-sex spouses

As a result of the Court of Appeal’s decision in 2003, marriages between same-sex couples are legal in Ontario. In July, 2005, the federal government also amended the Divorce Act (Canada) to allow married same-sex spouses to obtain a divorce.

Remarriage and Foreign Divorce

If the client intends to re-marry but was previously divorced outside of Canada, Ontario law requires the client to obtain a letter of opinion from a family law, lawyer regarding the recognition of his or her foreign divorce. Howard Nightingale Professional Corporation will be happy to provide our client with our legal opinion and reasons why your divorce should be legally recognized in the Province of Ontario.

Opinion Letter for Recognition of Foreign Divorces for Marriage in Canada

People who wish to marry in Ontario and who have previously divorced outside of Canada (whether one or both partners), are required to have the divorce reviewed and recognized for purposes of determining their marital status in Canada. An additional authorization must be obtained from the Ontario government, and this authorization must be presented before the marriage license is issued. In order to obtain this authorization, the following documentation must be submitted to the Office of the Registrar General:

1. Original or court-certified copy of each divorce decree. When the decree is in a language other than English or French, a certified translation is also required;
2. Letter of opinion from an Ontario lawyer that each divorce decree would be recognized in Ontario;
3. Marriage License Application;
4. Statement of Sole Responsibility, which states that the validity of a foreign divorce remains the responsibility of the license applicant, and that the Ontario government assumes no responsibility if the foreign divorce turns out to be invalid.
5. The presence of a prior, foreign divorce lengthens the time required to obtain a marriage license in Ontario by several months.

To prepare the Letter of Opinion, a lawyer requires the following:

1. An original or court-certified copy of each of the original decrees of divorce, and a certified translation of these documents;
2. Information about the jurisdiction (state) of residence of each of the parties to the divorce at the date the divorce was granted;
3. Information about the length of time the parties to the divorce had been ordinarily resident in that jurisdiction immediately prior to the date of application for divorce; and
4. A Marriage License Application, signed by both parties.

Canada will now recognize a foreign divorce if either party to the divorce was ordinarily resident in the foreign jurisdiction for one year preceding the application for that divorce. This scope of recognition applies to all divorces granted after February 13, 1986.

If your situation doesn’t exactly match this description, don’t despair. In the opinion letter a lawyer will analyze the person’s unique circumstances and apply not only current legislation, but also case law. For example, there are many situations in which people might not have been consistently resident in their jurisdiction, yet a case can be made that they still can be said to have a “real and substantial connection” to this jurisdiction.

Marriage & Cohabitation Agreements (Domestic Contracts)
Marriage Agreement/Contract (also called Pre-nuptial Agreement):

Marriage Agreements can be entered into by people who intend to marry or people who are already married. Clients with real property (that is, a house, condominium, cottage or commercial property) or with a significant amount of other assets, or who want to handle future financial issues in a predetermined way, should consider preparing a Marriage Agreement.

Without a Marriage Agreement, if a relationship breaks down, you as the spouse with more property will find that it is divided according to Ontario law, resulting in your spouse receiving property that neither of you intended for your spouse to have (see Property Division and Equalization for greater discussion of this topic). A properly drafted Marriage Agreement can settle the mutual intention that you both have prior to your marriage. Howard Nightingale has the experience to help you prepare a Marriage Agreement in accordance with your instructions, while fulfilling all of your legal requirements.

Cohabitation Agreements

When making the decision to cohabit (or live) with someone, people often do not consider the legal effect that this might have. Your cohabiting partner might be entitled to a portion of your property or to your financial support if the relationship dissolves. If you do not intend for your partner to receive a division of your property or spousal support, you should consider preparing a Cohabitation Agreement. Howard Nightingale Professional Corporation has the experience to help you prepare a Cohabitation Agreement in accordance with your instructions and all legal requirements.

Separation Agreements

The most common domestic contract negotiated between couples is a separation agreement. To enter into a separation agreement, you and your partner must have cohabited and must now be living separate and apart. However, couples who continue to live under the same roof may still be considered to be living separate and apart if they are living independent lives.
Separation agreements deal with custody and access to children, financial support arrangements, division of property, and estate considerations. However, please be aware that family court can disregard provisions in a separation agreement regarding children where it is deemed in the best interest of the children to do so.

Whether it is a marriage contract, cohabitation agreement or separation agreement, to be considered a valid domestic contract in Ontario, it must meet the following conditions:

1. The domestic contract must be in writing, signed by both parties and their signatures witnessed by other persons.
2. Both parties must participate in the negotiation of the terms in the domestic contract and have reasonable time to consider these terms without being. pressured to sign because of an imminent deadline (such as the wedding date set to occur just a few days away).
3. Both parties must enter into the domestic contract voluntarily, without fear, threats, duress or influence by the other.
4. Both parties must understand the terms of the domestic contract and how such terms can affect them in future; to do so, both parties should have independent legal advice from separate lawyers to explain the terms of the domestic contract and their respective rights and obligations under family law.
5. Both parties must provide full disclosure of their circumstances, including all information regarding their finances.
6. The domestic contract must be reasonable and fair, taking into consideration the parties’ individual circumstances.
7. Amending or Setting Aside Domestic Contracts.

If you have already entered into a domestic contract, but you have concerns about its fairness or validity, Howard Nightingale can review your existing domestic contract and advise you of your options. You may wish to amend the domestic agreement between you and your spouse or have the domestic contract set aside by the court.

If you and your spouse wish to amend the domestic agreement, under appropriate conditions Howard Nightingale can prepare a written amending document, revising the terms of the domestic agreement.

If your spouse is not agreeable to voluntarily amending the domestic contract, an application may be made to the Family Court to set aside the domestic contract for any one of three reasons:

1. one party has failed to disclose to the other significant assets or debts that existed at the time the contract was entered into
2. one party did not understand the nature or consequences of the contract, and did not have independent legal advice before signing, or
3. for general reasons under contract law, such as undue influence, mistake, misrepresentation, etc.

The family court can set aside the domestic contract if the terms of this domestic contract result in unconscionable (unreasonable) circumstances for either party.

Due to the court’s power to set aside agreements, parties should not enter into agreements for which there has been little or no financial disclosure. In addition, parties should be wary of signing a domestic contract when one party refuses to obtain independent legal advice from a lawyer, regarding his or her rights and obligations under the contract.