Common-law cohabitation in Canada does not produce the same property rights as marriage in most provinces. If you separate after years of living together, the default position is often that each person keeps what is in their own name — no matter who paid for what, who contributed labour, or who gave up a career for the relationship. A cohabitation agreement is how couples contract out of that default, setting out what is joint, what is separate, and what happens on death or separation. Done well, it prevents years of litigation. Done badly, it creates an enforceable document that can strip one partner of fair recognition for their contribution.
What is a Property Rights?
A cohabitation agreement is a domestic contract under provincial family law (e.g. Family Law Act in Ontario and BC, Civil Code in Quebec) that lets unmarried partners living together define their financial and property relationship. It can cover property division on separation, spousal support waivers or limits, treatment of gifts and inheritances, debt allocation, and what happens to a shared home. Each province has different default rules for common-law separation — BC, for example, treats 2+ year cohabitants as spouses with near-marriage property rights, while Ontario does not.
Red flags to watch for
Shared legal representation is a fast track to having the agreement set aside later. Independent legal advice (ILA) is essentially required for enforceability.
Courts routinely set aside domestic contracts where one party did not disclose significant assets or debts. The schedule is not paperwork — it is the foundation of enforceability.
A blanket support waiver signed early in a relationship is a high-risk term. BC, Ontario and other provinces will look at whether enforcement would be 'unconscionable' at the time of separation (Miglin v. Miglin principles).
Failing to specify ownership shares defaults to equal interest even if contributions were very unequal. Explicit percentages protect the larger contributor.
Timing affects fairness. Courts scrutinise agreements signed under emotional or time pressure, especially in BC under s.93 of the Family Law Act.
Quebec civil law treats de facto unions very differently from common law provinces. Boilerplate cross-provincial clauses can produce unintended results.
Your legal rights
Cohabitation agreements are enforceable across Canadian provinces if properly executed: in writing, signed by both parties, witnessed, with independent legal advice and full financial disclosure. In British Columbia, the Family Law Act (ss.92–93) treats unmarried couples who have lived together for 2 years as spouses for property and support purposes, and courts can set aside agreements that are significantly unfair. Ontario's Family Law Act (s.53) allows cohabitation agreements but note common-law partners do not share in 'net family property' automatically. Quebec's Civil Code (art. 521.1 et seq.) provides a parental union regime from June 2025 for new de facto unions with children, but does not extend to property sharing without agreement. All provinces recognise unjust enrichment and constructive trust claims (Kerr v. Baranow, 2011 SCC 10) as a fallback where there is no valid agreement.
Questions to ask before you sign
- 1Have we each had independent legal advice, and is it documented in the agreement?
- 2Have we both provided full sworn financial disclosure as a schedule?
- 3How is the family home treated — title, ownership shares, sale rights?
- 4Are we waiving or limiting spousal support, and is there a review point?
- 5How are debts (including student loans and credit cards) allocated?
- 6What happens to the agreement if we marry each other later?
- 7Is there a sunset clause or mandatory review after major life events (children, home purchase)?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.