We often get calls from people asking to put together a simple Cohabitation Agreement where each party keeps everything separate. Sounds simple, right? Not so fast.
In the recent case of Barnes-Morrison v. Kolias, despite what seemed to be a well-documented Cohabitation Agreement, the Courts took a very different view and things did not turn out as the man in the case had anticipated. Here is the background.
The man was from Calgary and the woman was from Kelowna. They began a relationship in 2011, separating in 2023, after 12 years.
In 2013, about two years after the relationship started, the parties entered into a Cohabitation Agreement. The Agreement said that all property would be kept separate, and that neither party would be required to support the other, in the event of a relationship breakdown. Each party also received independent legal advice, and that the Agreement would be interpreted pursuant to the laws of Alberta, and the Court in Alberta would determine any issues arising from the Agreement.
The woman came into the relationship owning a house, but sold it within the first four years. She then lived in the man’s Kelowna vacation property, then later, the man’s brother’s Kelowna vacation property. The parties travelled extensively together, and the woman stopped working as a realtor and relied on the man for financial support. The woman had two children from a previous marriage, but they were teenagers during the relevant years, then at the end, they were independent and self-supporting.
The man indicated that the parties never filed any joint Tax Returns, they had no joint bank accounts, they had no real estate properties together, and that he maintained his Alberta driver’s licence and paid taxes in Alberta, while the woman lived in BC.
After the parties separated, they each started lawsuits: the woman in BC and the man in Alberta. Many complicated questions were raised, such as which province could rule on the validity of the Agreement, and if the woman could get interim spousal support in the face of that Agreement. The woman was 63 years of age, and the man was 58 years of age.
The man had substantial income of about $3.8 million. The woman was imputed income at $40,000. Even though the parties had what appeared to be a valid and enforceable Cohabitation Agreement whereby everything was to be kept separate, the woman was granted interim spousal support of $23,000 per month. This reported decision is still in the early stages of the litigation. We will be keeping an eye out on what happens after a full trial.
Although it looked like the parties had done everything properly to have a simple Cohabitation Agreement, it did not work out that way. Some lessons from this case that could strengthen a Cohabitation Agreement include:
- A proper Agreement should be negotiated between the parties, rather than having one party propose a final Agreement and the other one simply signing it.
- Each party should truly receive independent legal advice, and that advice should be robust and not simply a quick meeting and signature.
- The parties should fully disclose in some detail their assets and likely prospects on how they see their lives unfolding in the future.
- Don’t be too cheap! In this case, the man was worth millions of dollars and the woman was worth a few hundred thousand dollars. The Courts found a way to make sure the woman was not left destitute.
- If you think that you may be living in two or three separate jurisdictions, consider getting the Agreement reviewed and compliant with the laws of each of those jurisdictions.
For more tips, see Cohabitation Agreements or talk to Lonny or another of our lawyers to get information and advice.
If you need assistance navigating this or other types of family law issues, please do not hesitate to contact us to see how we may be able to assist you.
– Written by Lonny Balbi, KC
