DOMESTIC CONTRACTS (December 8, 2020)

Domestic contracts and agreements are legal documents that bind the participating parties into mutually agreed upon terms. Domestic contracts are governed under the Family Law Act, RSO 1990, c F3 (“FLA”), but parties have the liberty to negotiate and decide on the included terms. There are several types of domestic contracts, each with their own applicable rules.

Marriage Contracts

You most likely are already familiar with a Marriage Contract. Under section 52 of the FLA, a Marriage Contract is created between two individuals who are married – or are planning to marry – in which they agree on their rights and obligations during marriage, or upon separation or death. These terms typically include:

  • Division of property, such as real estate and/or bank accounts, etc.;
  • Support obligations;
  • How to raise their children in regard to the child’s education and religion; and
  • Any other matter in respect to the arrangement of their affairs.

Marriage Contracts may not include terms on child custody and access rights upon separation, or limit a spouse’s right to ownership of the matrimonial home.

Cohabitation Agreements

Under section 53 of the FLA, a Cohabitation Agreement is made between to individuals who are not married and are cohabiting or intend to cohabit, in respect to their rights and obligations during cohabitation or on ceasing to cohabit or death. These terms typically include:

  • Property ownership or division;
  • Support obligations;
  • The right to choose their child’s education and religion; and
  • Any other matter in respect to the arrangement of their affairs.

Cohabitation Agreements may not include terms on child custody and access rights upon separation. If the parties end up marrying, they may include a term in the cohabitation that continues to bind them to the agreed upon terms (at which time this agreement becomes a Marriage Contract), or upon marriage the contract is void completely.

Separation Agreements

Parties who have either cohabited or married, and then separate, may make a Separation Agreement under section 54 of the FLA. In this agreement, parties may decide on:

  • Property ownership or division;
  • Support obligations;
  • The right to choose their child’s education and religion;
  • Child custody and access rights; and
  • Any other matter in respect to the arrangement of their affairs.

A Separation Agreement is only valid if it is created after the parties have already separated – otherwise, it’s deemed a Marriage Contract or Cohabitation Agreement.

Paternity Agreements

A Paternity Agreement under section 59 of the FLA is created between two individuals who are not spouses for payment towards various child and/or spousal expenses, such as:

  • Prenatal and after-birth care;
  • Financial support for the child; and
  • Funeral expenses of the child or parent.

Courts may incorporate this agreement when making an order for child support if they are satisfied that the terms were appropriate and adhere to Part III of the FLA, Support Obligations.

Family Arbitration Agreements

Family Arbitration may be a new term – it refers to issues that could be dealt with in any of the previously named contracts, but is done exclusively through the law of any Canadian jurisdiction.

  • The Family Arbitration Agreement must be made after the dispute has happened;
  • Agreements must comply with Sections 59.1 – 59.8 of the FLA, and the Arbitration Act, SO 1991, c 17, to be valid;
  • Agreements must be made in writing, signed by the parties, witnessed; and
  • Parties must seek Independent Legal Representation prior to making the agreement.

A Family Arbitration Award is the final decision made by the Court.

If you need a professionally drafted domestic contract or agreement, call Empel Law at 416.479.8531 at extension 101 to speak with Arkadiusz J. Empel.