Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 5 47 L E G A L R E P O RT \ FA M I LY L AW FAYE ROGERS Agreeing to disagree on cohabs Some family law lawyers asked to draw up 'unfair' cohabitation agreements are saying enough is enough. By Jennifer Brown oanne Stewart hesitates a little then utters the words she's been searching for to describe a seg- ment of clients she's seeing come through her door lately: "They're difficult and perplexing," she says of those asking for what many law- yers are calling high-risk cohabita- tion agreements. She's talking about a group — largely in their 30s and early 40s — seeking to obtain a cohabitation agreement that will absolve them of any financial responsibility for the person they may be living with right now. While cohab agreements are in no way new, some lawyers are getting increasingly uncomfortable with the potential liability of these agreements down the road. Mostly, these individuals don't intend to marry and want to set out all their financial obligations or lack thereof from the start, no matter how long they live together. "It becomes readily apparent it's a modern kind of relationship. It's not business, and it's not an old fashioned marriage either," says Stewart, a partner with Lerners LLP and a certified specialist in family law. "There are a lot of young people moving in together who were friends; maybe they had sex together, then decide to move in together. They may or may not love each other." The problem, she says, is what will the future look like for that couple? Is it a 30-year proposition, or two years? What's the fallout over 30 years? What if someone gets sick, fired, or pregnant? If one person has a stroke, will the other look after them? No? "The purpose of the contracts is to contract out of what the law would say if they were married or unmarried; what it would do for you or it would obligate you to do," says Stewart. "This group seems to have no sense of vulnerability. If they want to leave it pretty bland saying 'I am on my own forever and so is the other person' I probably won't do it because it's not worth the risk to me. These contracts have to be fair when signed and when looked at later. You have to disclose all the financial details in order to make a meaningful contract. Otherwise it could be declared draconian down the road and turn out to be the law- yer's fault. I would not usually do those and tell them they need to go somewhere else." It's the type of agreement family law law- yer Gary Joseph says he is also "really reluc- tant" to draw up — a document he says could be viewed as "significantly unfair" down the road and come back to bite all involved — including the lawyers. "I think it's consistent with the whole trend of young people who don't want to assume responsi- bility for anything," says Joseph, managing partner of MacDonald & Partners LLP in Toronto. "We're writing cohab agreements now that say the individuals are co-tenants J

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