Can a Prenup Waive Spousal Support in Ontario?

Many couples ask the same thing before a wedding: if we both sign a document saying neither of us will ever claim spousal support, will a court enforce it? The short answer is that it can be enforced, but not always, and there are limits you should know about before you sign.

This article explains the terms, the formal rules, the situations where a court can step in, and how spousal support differs from child support. Every situation is different, so a lawyer can confirm how these rules apply to yours.

What the law calls a prenup

The Family Law Act uses the term marriage contract. Words such as prenup and prenuptial agreement are informal names that the Act does not use. A marriage contract is one kind of domestic contract, along with separation agreements, cohabitation agreements, paternity agreements and family arbitration agreements.

Two people who are married to each other or intend to marry may make a marriage contract, and it may deal with support obligations. It is not limited to the time before the wedding, because people who are already married may also make one. As a general rule, a domestic contract that deals with a matter also covered by the Family Law Act prevails, unless the Act provides otherwise.

What makes the contract valid

A domestic contract is unenforceable unless it is made in writing, signed by the parties and witnessed. Ontario's government guidance says both spouses sign in front of a witness, and the witness also signs.

A lawyer is not one of those formal requirements. Even so, Ontario's government advises that each partner speak to a different lawyer and that the partners exchange financial information before signing. Doing both is a sensible way to reduce the risk of a later challenge.

A court may also set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets or significant debts or other liabilities, if a party did not understand its nature or consequences, or otherwise under the law of contract. The last ground is where arguments such as pressure to sign are generally raised. A clause saying the contract cannot be challenged does not remove this power.

When a court can set aside a support waiver

Separate from those general grounds, the Family Law Act lets a court set aside a support provision, or a waiver of the right to support, on three grounds.

Whether a particular waiver crosses the line into unconscionable circumstances depends on the facts at the time it is challenged, so it is worth talking through your situation with a lawyer.

If you are married and divorcing, the Divorce Act also applies. A court deciding spousal support considers any order, agreement or arrangement relating to support. The agreement is a factor the court weighs, not a bar to support. Unmarried partners can claim spousal support under Part III of the Family Law Act if they cohabited continuously for at least three years, or are in a relationship of some permanence and are the parents of a child.

Other limits on support terms

• A term that ends support if the recipient marries or lives with someone new is still given effect.
• A term that takes effect on separation and ends a party's rights because that party is not chaste is unenforceable.
• The support override and the court's power to set aside the contract still apply in Ontario even if the contract was made outside Ontario.
• A marriage contract cannot limit a spouse's rights in the matrimonial home. Any term that tries to do so is unenforceable.

Child support works differently. Every parent must support their child to the extent the parent is capable of doing so. A court making a child support order must follow the child support guidelines. It may award a different amount in limited cases, such as with both parents' consent if reasonable arrangements have been made for the child. A court may also disregard a contract term on child support if it is unreasonable having regard to the guidelines.

A marriage contract also cannot decide decision-making responsibility or parenting time. On those matters and on a child's education and moral training, a court may disregard a contract provision if doing so is in the child's best interests.

What to do next

• Decide what you want the contract to say about support, property and the home.
• Gather a full list of your assets and debts and share it with your partner before signing.
• Each of you should speak to a different lawyer before signing.
• Make sure the contract is in writing, signed by both of you and witnessed.
• If you later need to enforce support terms, ask about filing the contract with the clerk of the Ontario Court of Justice or the Family Court of the Superior Court of Justice using Form 26B: Affidavit for Filing Domestic Contract or Paternity Agreement.
• Revisit the contract if your circumstances change, because amending it also requires writing, signatures and a witness.

Frequently asked questions