Can a Marriage Contract Waive Spousal Support in Ontario?

Many engaged and married couples ask the same question: if we sign a marriage contract, often called a prenup, and both give up spousal support, will an Ontario court hold us to it? The short answer is that it often matters a great deal, but it is not always the last word.

This article explains what the Family Law Act allows, the situations where a court can set a support waiver aside, and the signing steps that help a contract stand up. It is general information, not advice on your own situation.

What a marriage contract can say about support

The Family Law Act uses the term marriage contract. Prenup and prenuptial agreement are informal names that the Act does not use. Two people who are married to each other, or who intend to marry, may make one. That includes couples who are already married, so it is not limited to the time before a wedding.

A marriage contract may deal with support obligations, ownership or division of property, and any other matter in the settlement of the couple's affairs. A domestic contract that deals with a matter also dealt with in the Act generally prevails over the Act, unless the Act provides otherwise. The words "unless the Act provides otherwise" matter here, because the Act does limit support waivers.

When a court can set a support waiver aside

Under s. 33(4) of the Family Law Act, a court may set aside a support provision, or a waiver of the right to support, in a domestic contract on three grounds.

• The provision or waiver results in unconscionable circumstances.
• The waiver is by or for a dependant who qualifies for an allowance for support out of public money, such as social assistance.
• Support under the contract is in default when the application is made.

What counts as unconscionable depends on the facts, and a lawyer can tell you how courts have approached it. For spouses who are divorcing, the federal Divorce Act says a court deciding spousal support considers any order, agreement or arrangement relating to support. An agreement is a factor the court weighs, not a bar to support.

Spousal support under Part III of the Act can also apply to unmarried partners who cohabited continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child.

Other ways the whole contract can be challenged

Separate from the support rules, a court may set aside a domestic contract or a provision in it on application. The grounds are listed in s. 56(4).

A clause saying these grounds do not apply will not work, because s. 56(4) applies despite any agreement to the contrary. How timing and pressure are judged, such as signing close to the wedding, depends on the facts and is decided case by case.

Signing it properly and terms that do not work

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

None of those formal requirements is a lawyer. Even so, Ontario's government advises that each partner speak to a different lawyer and that the partners exchange financial information before signing. How much these steps would matter if the contract were challenged later depends on the facts, so it is worth confirming with a lawyer.

Some terms are treated differently. A term that takes effect on separation and ends a party's rights if that party is not chaste is unenforceable. A term ending rights on marriage or cohabitation with another person is still given effect.

Child support and what to do next

Child support works differently from spousal support. Every parent must support their child to the extent they are capable. A court may disregard a contract provision on child support if it is unreasonable having regard to the child support guidelines. A marriage contract also cannot decide decision-making responsibility or parenting time.

If support terms in a contract are not being followed, a party may file 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.

• Each person should speak to a different lawyer before signing.
• Exchange full financial information, including significant assets and debts.
• Allow plenty of time so no one feels pressured.
• Put it in writing, sign it, and have it witnessed.
• Keep a signed copy somewhere safe and review it after major life changes.

Frequently asked questions