Can a Prenup Deal With Child Support or Parenting in Alberta?

Couples planning a marriage contract sometimes want to settle everything at once, including what child support would be paid and how parenting would be shared if they separate.

Alberta courts treat children's matters differently from property. This article explains why, and what a prenup can sensibly say about children.

This article covers the law of Alberta.

Child support: the guidelines come first

Under the Divorce Act, a court may order a spouse to pay support for any or all children of the marriage, and it must do so in accordance with the applicable guidelines. The amount is set by the Child Support Guidelines, not by the parents' private agreement alone.

Alberta's Family Law Act allows a parent to enter into a written child support agreement, but the agreement does not prevent a person from applying for a child support order, and a child support order ends any earlier child support agreement.

The court can depart from the guideline amount in limited cases: where it would be inequitable given special provisions for the child's benefit, or, on consent, where reasonable arrangements have been made for the child's support.

Parenting time and decision-making

When making a parenting order or contact order under the Divorce Act, the court considers only the best interests of the child and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. Parents cannot bind the court in advance on parenting time or decision-making.

Alberta's Family Law Act is similar. In proceedings about guardianship, parenting and contact, the court considers only the best interests of the child and must ensure the greatest possible protection of the child's physical, psychological and emotional safety.

Why a court keeps the final say

A prenup is signed before any child exists, or while children are very young. The factors a court weighs come from the situation at separation, not the one you imagined at the wedding.

• The child's needs given age and stage, and relationships with family.
• Each parent's willingness to support the child's relationship with the other parent.
• The child's care history and the child's views.
• Cultural and religious upbringing, and any family violence.
• The principle that a child should have as much time with each spouse as is consistent with the child's best interests.

Before varying a parenting order, an Alberta court must be satisfied that a change in the needs or circumstances of the child has occurred. Because parents cannot bind the court in advance on parenting time or decision-making, a parenting term in a prenup does not take away the court's own best-interests assessment at separation.

What a prenup can and cannot do

Property is where a written agreement does its real work. Under the Family Property Act, an agreement between spouses that is enforceable under section 38 replaces the default division rules for the property it covers. To be enforceable, each party must acknowledge in writing, apart from the other, that they are aware of the nature and effect of the agreement, that they understand their possible future claims under the Act and intend to give them up as the agreement provides, and that they are signing freely and voluntarily. That acknowledgment must be made before a lawyer other than the lawyer acting for the other party.

An agreement made before marriage is unenforceable after the marriage unless it is clear in the agreement that the parties intended it to apply or continue to apply after the marriage.

Spousal support is a separate question. The Family Law Act allows spouses to sign a written agreement in which one releases the other from support. Even so, a court may make a different support order if it is satisfied that the agreement is inequitable and one of the listed circumstances exists, such as the person challenging it having signed without independent legal advice.

A court considering both child support and spousal support gives priority to child support, and records its reasons if that results in no spousal support or a lower amount. That is one more reason not to treat a prenup as the last word on money tied to children.

What to do next

• Keep your prenup focused on property, which the law lets you settle in advance.
• If you want a property agreement to hold up, make sure each of you gives the written acknowledgment before a lawyer who is not acting for the other.
• If you want to record shared values about parenting, treat them as intentions rather than binding terms.
• Revisit your plans if you separate, since the court looks at the child's circumstances at that time.
• Ask a lawyer how any child-related wording would be treated, because the outcome depends on the facts.

Frequently asked questions