- Domestic contracts are usually drafted around the circumstances the couple can see at the time — the assets they currently hold, the arrangement that currently makes sense.
- Some topics aren't fully within a couple's power to lock in by contract, whether the contract addresses them or stays silent.
No marriage contract or separation agreement covers absolutely everything. Life produces situations the parties never anticipated at signing — a new asset, a changed job, a question about who covers a specific expense — and sometimes the document you both signed simply doesn't say anything about it. When that happens, the contract doesn't fail entirely. Ontario's default family law rules step in to fill the specific gap, whether or not that's the outcome either spouse would have chosen.
Understanding which rules fill which gaps matters both when you're drafting a domestic contract and later, if a dispute arises over something the contract never mentioned.
Why Gaps Happen
Domestic contracts are usually drafted around the circumstances the couple can see at the time — the assets they currently hold, the arrangement that currently makes sense. A contract drafted years before a separation, like a marriage contract, is especially likely to leave gaps, simply because so much can change in the meantime. Even a separation agreement negotiated closer to the actual split can miss something, particularly if it was drafted quickly or without full legal review on both sides.
A gap is different from a vague or ambiguous clause. A vague clause tries to address a topic but does so unclearly; a true gap means the contract never addresses the topic at all.
What Fills the Gap, Topic by Topic
| Issue | If the contract addresses it | If the contract is silent |
|---|---|---|
| Division of property generally | The contract's own terms usually control | Ontario's default equalization of net family property under the Family Law Act applies |
| The matrimonial home | Depends on what the contract validly addresses | The Family Law Act's special matrimonial home protections — including equal possession rights — generally continue to apply regardless |
| Spousal support | The contract's own terms usually control | Entitlement and amount are assessed under the Family Law Act's general framework, without a pre-set figure to rely on |
| Child support | Cannot be permanently waived by contract in any event | The applicable child support guideline tables apply based on income and the number of children |
| Parenting time / decision-making responsibility | Treated as guidance, not a guarantee, even where addressed | Decided fresh under the best-interests-of-the-child test |
Issues Silence Genuinely Can't Fix — Even With a Clause
Some topics aren't fully within a couple's power to lock in by contract, whether the contract addresses them or stays silent. Child support is the clearest example: a domestic contract cannot permanently sign away a child's right to support, since that right belongs to the child, not to the parents. Parenting arrangements work the same way in principle — a court applying the best-interests test isn't limited by what the contract says, or doesn't say, about how the parents expected to handle things.
This means that for these two topics specifically, the practical difference between "the contract addressed it" and "the contract was silent" is smaller than it is for property or support between spouses. Either way, the underlying legal test — the guideline tables, or the child's best interests — ultimately controls.
How to Check Your Own Contract for Gaps
- [ ] List every significant asset and debt you currently hold, and confirm each one is actually addressed
- [ ] Check whether the matrimonial home is specifically dealt with, or only assumed to be covered by general property language
- [ ] Confirm spousal support is either addressed with clear terms or deliberately left open — not simply forgotten
- [ ] Look for any asset or circumstance that didn't exist when the contract was signed (a new business, a new property, a significant gift or inheritance)
- [ ] Have a lawyer review the contract specifically for gaps, not just for whether the clauses you do have are well written
If you find a genuine gap, the fix is a formal amendment — in writing, signed by both spouses, and witnessed, just like the original contract — rather than an informal understanding that the gap "obviously" gets handled a certain way.
Frequently asked questions
Does a gap make the whole contract invalid?
No. A gap on one issue doesn't affect the validity of the rest of the contract. The unaddressed issue simply falls back to Ontario's default rules, while everything the contract does cover continues to apply as written.
We assumed something was "obviously" covered by a general clause — does that count?
Not reliably. A general clause that doesn't clearly address a specific issue can leave real uncertainty about whether it was meant to cover that situation, which is functionally similar to a true gap once a dispute arises.
Is it better to address every possible issue, or leave some things flexible on purpose?
It depends on your priorities. Some couples deliberately leave certain issues to be resolved later, understanding that Ontario's default rules will apply if they never revisit it. That can be a reasonable choice, as long as it's a deliberate one rather than an accidental gap.
Can we fix a gap ourselves without a lawyer?
You can identify a gap yourselves, but formally amending a domestic contract has the same legal requirements as the original — in writing, signed, and witnessed — and getting it wrong can create new uncertainty rather than resolving the old gap.
This is a family law question
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