Can You Waive Spousal Support in an Ontario Marriage Contract?

If you want to limit or waive spousal support in a prenup, you will want to know whether that promise will stand if the marriage ends. In Ontario, you can address support in a contract, but courts keep some power to step in.

In Ontario a prenup is a marriage contract. This article covers what the contract can say about support, the grounds in section 33(4) of the Family Law Act, and other ways a waiver can be challenged.

Support can be addressed in the contract

A marriage contract may deal with support obligations. Ontario's government confirms these contracts can cover support, property division and who moves out of the home. Prenup and prenuptial agreement are informal names, and the Act uses the term marriage contract.

A contract that deals with a matter also dealt with in the Family Law Act generally prevails, unless the Act provides otherwise. Separately, section 33(4) of the Act sets out grounds on which a court may set aside a support provision or a waiver of support in a domestic contract, as described below.

A marriage contract is not limited to the time before the wedding. People who are already married to each other may also make one. Two people who are married or intend to marry may agree on their rights and obligations under the marriage, on separation, on annulment or dissolution of the marriage, or on death.

Support is a different question from property. The Act excludes from net family property any property the spouses have agreed by a domestic contract is not to be included. A marriage contract may also deal with the right to direct the children's education and moral training, but not decision-making responsibility or parenting time.

When a court may set aside a support waiver

Under section 33(4), 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.
• It is in favour of, or the waiver is by or on behalf of, 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, so a lawyer can help you judge how a particular clause might be viewed.

Other ways the contract can be challenged

A court may also set aside a domestic contract or a provision in it on these grounds:

• A party failed to disclose significant assets or debts.
• A party did not understand the nature or consequences of the contract.
• Otherwise in accordance with the law of contract, which is the route for arguments such as duress.

A clause cannot remove the court's power to set the contract aside on these grounds. The contract must also be in writing, signed and witnessed to be enforceable.

Children's matters are treated differently from spousal support. A court may disregard a contract provision on child support if it is unreasonable having regard to the child support guidelines. On education, moral training, decision-making responsibility or parenting time, a court may disregard a provision if doing so is in the child's best interests.

If a contract was made outside Ontario, its formalities and validity are governed by its proper law, but section 33(4) and section 56 still apply in Ontario.

Married, common-law and divorcing couples

For support under Part III of the Family Law Act, spouse includes 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. Ontario's property-division rules do not require unmarried couples to split property acquired while living together, but common-law partners can set their property rights by a cohabitation agreement. If they later marry each other, that agreement is deemed to be a marriage contract.

For spouses who divorce, the Divorce Act directs a court deciding spousal support to consider any order, agreement or arrangement about support. An agreement is a factor the court weighs, not a bar to support.

What to do next

• Decide whether you want to limit support or waive it entirely.
• Exchange financial information and have each partner speak to a different lawyer before signing.
• Ask a lawyer how a waiver might be viewed if circumstances change.
• Make sure the contract is written, signed and witnessed.
• If an existing contract is in default, ask a lawyer about your options, including filing it for enforcement with Form 26B.

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

Frequently asked questions