Spousal Support Waivers in Ontario Marriage Contracts

If your partner has asked you to waive spousal support in a prenup, or you are the one asking, you may be wondering whether the waiver will really hold up years later. The honest answer is that it depends on the facts, and Ontario courts have the power to set aside a contract or a provision in it in certain situations.

This article explains what the law says about support waivers, when they have been upheld or set aside, and what to do before signing. It is general information, not legal advice.

A support clause is allowed, but it is not the last word

A marriage contract or cohabitation agreement can cover support. Once signed, the contract must be followed, and if the spouses separate and disagree about it, a judge may need to decide.

When a court makes a spousal support order under the Divorce Act, it must consider the condition, means, needs and other circumstances of each spouse. That includes the length of time the spouses cohabited, the functions each performed during cohabitation, and any order, agreement or arrangement relating to support of either spouse. So the waiver is an important factor, but it sits alongside other considerations.

The Divorce Act also says a spousal support order should recognize economic advantages or disadvantages from the marriage or its breakdown, share the costs of child care beyond the child support duty, relieve economic hardship from the breakdown and, as far as practicable, promote each spouse's economic self-sufficiency within a reasonable period. These are the goals a court has in mind when it looks at whether a waiver should be given weight.

When a court can set a waiver aside

Under section 56(4) of the Family Law Act, a court may, on application, set aside a domestic contract or a provision in it in three situations:

• A party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the contract was made.
• A party did not understand the nature or consequences of the contract.
• Otherwise in accordance with the law of contract.

This is a two-step process. First the applicant must show one of those circumstances, which is necessary but not sufficient. Second, the court decides whether to exercise its discretion to set the agreement or provision aside, and fairness can be considered at that stage.

The power is all or nothing for a given provision. Section 56(4) allows a court to set aside a contract or provision in its entirety. It does not let the court carve particular assets out of an agreement or amend it.

On timing, the Family Law Act sets no limitation period for an application to set aside a domestic contract, so the Limitations Act governs. In one Court of Appeal decision the majority held that the declaration sought had no limitation period, while the equalization claim stays subject to the six-year period and the support claim has no limitation period. Because timing rules can be technical, ask a lawyer about your own dates.

What the courts have done with waivers

One Ontario Court of Appeal decision involved a cohabitation agreement rather than a prenup, so it is not a direct precedent for every marriage contract. In it, property clauses were set aside on the ground that a party did not understand the consequences, because the trial judge found overwhelming evidence that neither party understood the agreement's consequences.

In the same case, the spousal support waiver was not set aside. The trial judge found no particular unfairness from it, the Court of Appeal upheld that, and it noted there was no finding that the parties misunderstood or did not intend the waiver.

The lesson is that each provision is judged on its own facts. A weakness in one part of an agreement does not automatically bring down every other part.

Courts can still look at the agreement later

Justice Canada's spousal support guide explains that a test known as the Miglin test applies on an initial support application in the face of a final agreement. It is used to decide the weight given to the agreement and whether a court may override it. The guide also says that test does not govern variation of consent orders, which use the material change test.

In plain words, a waiver may be examined again when someone actually applies for support, and the result depends on the circumstances. Child support is also given priority when both child and spousal support are considered together. How these tests apply to a prenup waiver in your situation is a question for a lawyer.

What to do before you sign or when you want to challenge one

• Ask for full financial disclosure of assets and debts, and give your own, since non-disclosure is a ground to set aside a contract.
• Make sure you understand what you are giving up and what the clause could mean years from now, since not understanding the consequences is also a ground.
• Each partner should have a different lawyer, and you should exchange financial information before signing.
• Sign in front of a witness who also signs; later changes must be in writing and witnessed.
• Do not rely on an informal later arrangement; one that was not written, signed and witnessed did not amend a contract in a Court of Appeal case.
• If you are considering challenging a waiver, speak with a lawyer promptly about your dates and options.

A lawyer can review the actual wording, your circumstances and the timing, and tell you how a court is likely to approach the clause.

Frequently asked questions