Can a Prenup Decide Child Support or Parenting in BC?

Many couples want a prenup or marriage agreement to cover everything, including what happens to their children if the relationship ends. It is understandable to want certainty. In British Columbia, though, the law treats money between spouses and arrangements for children very differently.

This article explains why child support, parenting, contact and guardianship terms in a marriage agreement are generally not binding as such, what changes once you separate, and how that contrasts with property terms. It is general information, not advice for your situation.

This article covers the law of British Columbia.

Why children's terms are treated differently

Under the Family Law Act, spouses can make agreements about dividing property and debt, and those agreements can override the default rules. Children's matters are handled by separate rules, and the Act limits when an agreement about them can bind anyone.

The basic idea is timing. A prenup's child support terms are not binding as such, because an agreement respecting child support is binding only if it is made after separation, or when the parties are about to separate for the purpose of being effective on separation. So the Act ties binding agreements to the point of separation.

What a prenup cannot lock in

In practice, this means that a clause in a prenup setting child support, a parenting schedule or who will be a guardian is not binding as such. It may show what you both intended at the time, but you should not count on it to decide these questions later.

What happens once you separate

An agreement respecting parenting arrangements is binding only if it is made after separation, or when the parties are about to separate and it is meant to take effect on separation. Two or more of a child's guardians may make an agreement about parenting arrangements, including parental responsibilities, parenting time, implementation and dispute resolution. A child support agreement can also be made at that stage.

• A written child support agreement filed in the court is enforceable under the Act as if it were a court order.
• A written parenting-arrangements agreement filed in the court is enforceable as if it were a court order.
• Child support is determined in accordance with the child support guidelines.
• The court may order an amount different from the guidelines if the parties consent or have an agreement and the court is satisfied that reasonable arrangements have been made for the child's support.

The court can still step in

Even a proper separation agreement about children is not final in the way a property agreement can be. On a party's application, the court may set aside or replace all or part of a child support agreement if it would make a different order after considering the matters in section 150.

For parenting arrangements, the rule is firmer: on a party's application, the court must set aside or replace all or part of an agreement that is not in the child's best interests.

How this compares with property terms

Property is where a marriage agreement does its main work. Spouses may agree to divide family property and family debt equally or unequally, include or exclude items, and value them differently. The set-aside regime applies to a written agreement signed by both spouses, with each signature witnessed by at least one other person, and it applies to people who are spouses, whether married or unmarried and living together for at least two years in a marriage-like relationship; the Supreme Court may also apply it to an unwitnessed written agreement if satisfied that would be appropriate in all of the circumstances.

The court may set aside or replace a witnessed property agreement only if listed circumstances existed when it was made, such as non-disclosure, improper advantage of vulnerability, or not understanding the agreement. It may also act if the agreement is significantly unfair. Children's terms do not get this kind of protection from being agreed in advance.

What to do next

• Keep children's terms out of your prenup, or treat them only as a statement of intentions.
• If you separate, consider a new written agreement about child support and parenting made at that time.
• Ask whether filing a written agreement in the court makes sense for enforcement.
• Get legal advice before making final decisions; the Province advises this for property and debt.

Frequently asked questions