Can a Prenup Decide Child Custody or Child Support in Ontario?

If you are expecting a child or planning a family, you may want your prenup to settle who will raise the children and who will pay. Ontario law limits what a contract can do here.

In Ontario a prenup is called a marriage contract. This article explains what it can cover about children, why courts keep control of these questions, and what you can sensibly put in writing.

What a marriage contract can cover

Two people who are married or intend to marry may make a marriage contract about their rights and obligations during the marriage, on separation, annulment or dissolution, or on death. It may deal with property, support obligations and any other matter in the settlement of their affairs.

Prenup is only an informal name; the Act uses marriage contract.

A marriage contract is not limited to the time before the wedding. People who are already married to each other may also make one. If the parties to a cohabitation agreement later marry each other, that agreement is deemed to be a marriage contract.

• Ownership in or division of property.
• Support obligations.
• The right to direct the education and moral training of the couple's children.
• Any other matter in the settlement of the couple's affairs.

Parenting: what cannot be agreed in advance

A marriage contract may deal with the right to direct the education and moral training of the couple's children. It may not deal with decision-making responsibility or parenting time. Ontario's government says the same: these contracts cannot say who will have decision-making responsibility or parenting time.

Ontario's government confirms that marriage contracts and cohabitation agreements can cover support, property division and who moves out of the home. Even on education and moral training, a court may disregard a contract provision if doing so is in the child's best interests.

The reason for the limit is practical. Children's needs and a family's circumstances change over time, and a contract signed before a child is born cannot know those facts. Courts keep the final say so that these questions are decided with the child's situation in front of them.

If a contract was made outside Ontario, its formalities and validity are governed by its proper law, but limits still apply in Ontario to terms on decision-making responsibility and parenting time.

Child support and the guidelines

Every parent has an obligation to 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.

When deciding child support, a court may disregard a contract provision on that matter if it is unreasonable having regard to the guidelines. There are limited exceptions where a different amount may be ordered:

• Special provisions in an order or written agreement make the guideline amount inequitable.
• Both parents consent and the court is satisfied that reasonable arrangements have been made for the child's support.

For divorcing spouses, the Divorce Act has similar rules, allowing a different amount where special provisions in an agreement benefit the child or both spouses consent and reasonable arrangements exist.

What you can sensibly agree

In practice, many couples use the contract for property and their own finances, and leave children's arrangements to be decided when the family's circumstances are known.

Spousal support is the couple's own matter, but it has limits too. A court may set aside a support provision, or a waiver of the right to support, in a domestic contract on three grounds. For divorcing spouses, a court deciding spousal support considers any agreement relating to support as a factor it weighs, not a bar to support.

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

What to do next

Any term of a marriage contract that tries to limit a spouse's rights under the matrimonial home rules in Part II is unenforceable. A court may also set aside a contract or a provision in it for failure to disclose significant assets or debts, for lack of understanding of its nature or consequences, or otherwise in accordance with the law of contract. A clause cannot remove that power.

To be enforceable, a domestic contract must be made in writing, signed by the parties and witnessed. Ontario's government guidance says both spouses must sign in front of a witness, and the witness must also sign.

• List what you want the contract to cover, and separate your own finances from children's issues.
• Remove any terms on parenting time or decision-making.
• Ask a lawyer how any child-related wording would be treated.
• Have each partner speak to a different lawyer and exchange financial information before signing.
• Remember that a marriage contract must be written, signed and witnessed.
• Keep a signed copy of the contract and your financial information somewhere safe.

How all of this applies depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions