C. Cohabitation Agreements

Author:Julien D. Payne - Marilyn A. Payne

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In the distant past, courts refused to recognize or enforce agreements entered into by unmarried cohabitants. Such agreements were regarded as illegal and contrary to public policy on the basis of immorality. In view of fundamental changes in social attitudes in the latter part of the twentieth century, courts have abandoned their original stance by upholding the validity and enforceability of contracts entered into by unmarried cohabitants. In Chrispen v Topham,18for example, where unmarried heterosexual cohabitants entered into a written agreement respecting the sharing of household expenses and a collateral oral agreement respecting the performance of domestic chores, both agreements were found to be in default and were held enforceable by way of damages or monetary compensation. Recognition has also been granted to contractual arrangements entered into by unmarried cohabitants of the same sex. In Anderson v Luoma,19a British Columbia court acknowledged the right of a lesbian to pursue contractual and property claims against her mate. The contractual claim was dismissed, however, on the ground that the evidence did not support a finding that a contract had been entered into. The alternative claim to share in property on the basis of the doctrine of unjust enrichment was upheld. Accordingly, the claimant was entitled to a 20 percent interest in certain property that had been acquired by her mate during their relationship. These judicial developments occurred in the absence of any express statutory authority.

Although provincial and territorial legislation in Canada throughout the twentieth century remained silent on the question of whether same-sex cohabitants could enter into legally binding contracts, several provinces and one territory enacted legislation that expressly permitted unmarried cohabitants of the opposite sex to enter into "cohabitation agreements." The

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relevant statutory provisions in New Brunswick, Newfoundland, Ontario, Prince Edward Island, and the Yukon are broad in scope. In general, they empower unmarried cohabitants of the opposite sex to enter into "cohabitation agreements" for the purpose of regulating ownership in or the division of property, spousal and child support rights and obligations, and other matters in the settlement of their affairs. Except in British Columbia and the Yukon, matters relating to custody of and access to children fall outside the scope of cohabitation agreements...

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