IV. Registration of Common-Law Partnerships

Existing Systems Which Record
Common-Law Associations

Ontario

The Ontario Family Law Act provides for the making of agreements by common-law partners. Section 53 follows a sub-heading entitled Cohabitation Agreement, and provides:

53 (1) Two persons of the opposite sex or the same sex who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,

ownership in or division of property;
support obligations;
the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
any other matter in the settlement of their affairs.

53(2) If the parties to a cohabitation agreement marry each other, the agreement shall be deemed to be a marriage contract.

Section 54 and 55 provide:

54 Two persons of the opposite sex or the same sex who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

ownership in or division of property;
support obligations;
the right to direct the education and moral training of their children;
the right to custody of and access to their children; and
any other matter in the settlement of their affairs.

55 A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

The contracts are subject to the best interests of the child.

56(1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

The contracts are subject to child support guidelines.

56(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract or paternity agreement pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract or agreement.

56(4) A court may, on application, set aside a domestic contract or a provision in it,

if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
if a party did not understand the nature or consequences of the domestic contract; or otherwise in accordance with the law of contract.

I have made inquiries in Ontario and it appears there is no requirement to register a cohabitation agreement. The statute nevertheless provides guidance to common-law couples on matters that could be contained in an agreement they would like to have but if Manitoba statutes cover all of these matters there would be no need for an agreement.

Ontario limits the use of the agreement to couples who are not married to each other. The provision does not say that those entering into the cohabitation agreement, or one of them, cannot be married to someone else. I think that is an important distinction, as I believe the same approach should be taken when Manitoba statutes are being amended. It should be possible for all types of common-law relationship to be registered.

I recommend the Ontario provisions not be included in Manitoba legislation.


Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. - Final Report Part IV) Existing Systems Which Record Common-Law Associations Ontario

Part IV) Nova Scotia	Part IV) Vermont

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report