The parties designed the contract to withstand changes in circumstances, including employment loss: court
The Ontario Superior Court of Justice has upheld the validity of a 2014 cohabitation agreement between separated parents of an eight-year-old child, ruling it a binding domestic contract under the Family Law Act.
The decision affirmed the agreement's enforceability while deferring other issues, including parenting arrangements and spousal support, to trial.
The parents, who separated in December 2021 after cohabiting for approximately eight years, signed the cohabitation agreement during their relationship. The contract stipulated separate property ownership and waived claims for spousal support and property equalization. The court emphasized that both parties received independent legal advice before signing and designed the contract to withstand changes in circumstances, including job loss.
The mother sought a declaration that the agreement barred the father's claims for spousal support and an equitable interest in property. The father, however, argued that the waiver of spousal support created "unconscionable circumstances" after he lost his federal government job under contested circumstances. While the court acknowledged the father's unemployment, it found no evidence that the agreement was unconscionable or unenforceable at this stage.
Section 33(4) of the Family Law Act allows courts to set aside a waiver of spousal support if it creates unconscionable circumstances. The Superior Court determined whether the father's financial situation meets this threshold, which requires further examination. The court highlighted that the father's earning capacity plays a central role in both spousal and child support issues, which it will address at trial.
In addition to the dispute over the cohabitation agreement, the court considered parenting matters. The mother proposed changes to the existing "3-3-4-4" parenting schedule, including school-based pick-ups and drop-offs to minimize face-to-face interactions with the father. She also sought interim authority to make healthcare decisions for their child. The court allowed weekday school-based transitions where practical but declined to alter the overall schedule, citing a lack of urgency.
Lastly, the mother advocated for urgent orthodontic assessments to address the child's healthcare needs. The court permitted preliminary steps, including radiography and measurements, but deferred broader decisions on treatment and healthcare authority pending further evidence, including the child's preferences and additional medical reports.
