Can a Prenup Decide Child Support or Parenting in Alberta?

Many couples drafting a prenup or marriage contract want to settle everything at once, including what child support will be and who the children will live with. It is a natural wish. You want certainty, and you may have seen how stressful a dispute over children can be.

In Alberta, a prenup does some jobs well and others not at all. This article explains what it can decide, what it cannot, and how to draft so the document does what you expect.

This article covers the law of Alberta.

What a prenup can bind: property

The default property division rules in Part 1 of the Family Property Act do not apply to property covered by a written agreement between spouses or adult interdependent partners that is enforceable under section 38. So a compliant agreement replaces the default rules for the property it covers.

An agreement can say how property is divided on separation, on becoming former adult interdependent partners, or on dissolution of the marriage, and it can cover property owned at signing or acquired later. For a prenup, the agreement must make clear that it is intended to apply or continue after the marriage, or it is unenforceable once you marry.

To be enforceable, each person must acknowledge in writing, apart from the other, that they understand the nature and effect of the agreement, understand their possible future claims and intend to give them up as the agreement provides, and are signing freely and voluntarily. Each acknowledgment must be made before a lawyer other than the lawyer acting for the other person.

Child support: the guidelines decide, not the prenup

Under the Divorce Act, a court may order a spouse to pay support for children of the marriage and must do so in accordance with the applicable guidelines. The amount is set by the Child Support Guidelines, not by the parents' private agreement alone.

Alberta's Family Law Act allows parents to make a written child support agreement, but it does not prevent anyone from applying for a child support order, and a child support order ends any earlier agreement. A figure written into a prenup years before separation therefore cannot lock anyone in.

A court may depart from the guideline amount only in limited cases. It can do so where the guideline amount would be inequitable given special provisions for the child's benefit, or, on consent, where reasonable arrangements have been made for the child's support.

Parenting time and decision-making

When making a parenting order or contact order under the Divorce Act, the court considers only the best interests of the child, with primary consideration to the child's physical, emotional and psychological safety, security and well-being. Parents cannot bind the court in advance on parenting time or decision-making.

Alberta's Family Law Act takes the same approach. In guardianship, parenting and contact proceedings, the court considers only the child's best interests. Even once an order exists, the court must be satisfied that the child's needs or circumstances have changed before varying it.

The court looks at factors such as the child's needs given age and stage, each parent's willingness to support the child's relationship with the other parent, care history, the child's views and family violence. Because the court looks only at the child's best interests, a parenting term in a prenup does not decide the outcome.

Spousal support and how it interacts with child support

A prenup can include a spousal support term. Alberta's Family Law Act permits a written agreement in which one person agrees to pay support or releases the other from liability for support. Under that Act, a court may not make an order that differs from the agreement unless it is satisfied the agreement is inequitable and one of the listed circumstances exists. One of those circumstances is that the person challenging it signed without independent legal advice. If spousal support is decided on a divorce, the Divorce Act applies instead, and the court takes any agreement about support into account along with each spouse's circumstances and weighs it against the objectives of spousal support.

Children can affect this. When a court considers both child support and spousal support, it must give priority to child support, and it records its reasons if that results in no spousal support or a lower amount. Justice Canada's guide also describes complete waivers as often fairly easily overridden or set aside, especially where there are children.

Drafting points and next steps

• Put property terms in the agreement and meet the section 38 steps: separate written acknowledgments, each before a lawyer who does not act for the other person.
• For a prenup, say expressly that it continues after the wedding.
• Treat any clauses about children as statements of intent or values, not binding terms.
• Do not rely on a fixed child support figure; the guidelines and a later order can replace it.
• Be careful with spousal support waivers, and get independent legal advice on them.
• Review the agreement if your circumstances change, and ask a lawyer how it applies to you.

If you are drafting a prenup, bring a list of your assets, your goals for the agreement and your questions about children. A lawyer can confirm how the rules apply to your situation.

Frequently asked questions