Are you thinking about getting a prenup in Toronto? If so, congrats on taking the first step toward marital harmony and financial security! Here are the essential legal requirements (i.e., the instructions your prenup should follow)—to be upheld in a Canadian court.
For example, let’s say you and your soon-to-be spouse draft a prenup, agree to the terms, get it in writing, seek independent legal advice, and then sign it. Sounds simple. But wait—there was only one witness present at the signing. Unfortunately, if you live in Toronto, that might be enough to get your prenup tossed by a court. This is why understanding the legal requirements for your prenup is important. Let’s dive into everything you need to know about getting a valid prenup in Toronto.
A deep dive into the Toronto prenup requirements
In Canada, prenups have different legal requirements depending on the province or even territory that you reside in. If you live in Toronto, the Ontario prenuptial legal requirements are that the prenup is in writing, the signing of the prenup is witnessed, the spouse’s signatures are provided in the agreement, and a complete financial disclosure is provided before drafting the agreement.
Here are six reasons why your prenup might be considered invalid by a court in Ontario:
- If the prenup is not in writing. Verbal agreements will not be upheld.
- A signature is missing from either prospective spouse.
- No witnesses were present at the signing of the prenup.
- You had witnesses at the signing, but they did not sign the agreement.
- The prenup was not considered fair or reasonable when it was written— it was unconscionable.
- If there was incomplete or inaccurate financial disclosure when drafting the prenup.
What if we forgot to include something in our prenup?
If you’re considering a prenup in Ontario, know it must be in writing. If you are conversing with your partner but forget to include it in the prenup, it’s generally not enforceable. Why? Oral agreements or “kitchen table conversations” will not count. A prenup has to be a formal written document in Toronto and in the rest of Ontario, as well. This legal requirement comes from the Family Law Act, RSO 1990, c F.3, the provincial law governing all prenuptial agreements in Toronto.
What if our prenup gets signed by each spouse on a different day or time?
Ontario’s law is flexible regarding signing the prenup and when this should happen. A simple rule of thumb is that the agreement should be signed before the marriage, and the witnesses must be present each time a spouse signs. Having a witness each time is vital for this process, as every time the document is signed, the witness has to observe the signing and then add their signature.
What if the signing of my prenup is not witnessed?
This will be a significant issue in Toronto as one of the formal requirements in the Ontario Family Act is that prenuptial agreements must be witnessed, and proof must be provided. In practice, each party brings a separate witness who is willing to watch the signing of the prenup and then have them also sign the agreement later. Remember: each couple needs to have one witness, and this can’t be the same witness.
Ontario case law demonstrating when prenups are not enforceable
Kamermans v. Gabor, 2018 ONSC 5241
This case demonstrates the significance of written agreements because verbal agreements for prenups in Ontario are not enough. In this case, a spouse claimed that there had been a verbal agreement stipulating that if the couple were to get a divorce, the husband would get his down payment back for a shared home. Here, the court clarified that any agreement to be enforceable in a prenup needs to be laid out in writing, signed by both parties and witnessed.
Waldick v. Waldick, 2002 CanLII 49528
In this case, a wife raised concerns during the divorce proceedings, but the prenup did not have her signature. In this case, her husband and a witness lawyer were the only ones to sign the prenup. This may seem minor, but according to the formality requirements of the Ontario Family Act, this cannot be ignored, as, in this case, the lack of a signature got the agreement tossed.
What does having full disclosure of financial information mean when getting a prenup done in Toronto?
The importance of disclosing financial information to have a prenup that follows Ontario legal requirements cannot be overstated. Why? Well, in several cases, the Supreme Court of Canada? Ontario? It has been said that couples who fail to provide complete and truthful financial information risk the validity of a prenup. For example, if one party knowingly withholds financial information, this would damage the fairness of the negotiation, raising an eyebrow in court.
However, it’s also important to note that not financially disclosing something will not automatically get a prenup tossed, as what courts in Ontario look at is 1) the intention of the parties and 2) the effect that this non-disclosure had in the entirety of the agreement. It is very expensive for a couple to sort out.
How might a prenup not be considered ‘fair and reasonable’ by a court in Ontario?
The Family Law Act of Ontario recognizes that the validity and enforceability of prenups can be challenged under certain conditions. Just because a prenup ticks all the legal requirement boxes—like having both signatures from the couple, the agreement being written, and having witnesses—does not guarantee the deal will be fair.
Canadian courts examine fairness in two ways. First, they ask if the prenup was written in a way that demonstrates a negotiation that allows both parties to understand the terms of their agreement and gives them a genuine opportunity to agree. In other words, they ask if each person felt they had a fair chance to discuss and be a part of the agreement. Second, they ask if the terms of the prenup would be fair if the prenup were to be enforced by the court.
Here are two examples of when a court in Ontario may question the ‘fairness’ of a prenup:
- If there is a big difference in the parties’ financial position when the prenup gets enforced (a.k.a., at the time of divorce).
- If there was no Independent Legal Advice (ILA) given and courts feel one person didn’t fully understand the agreement.
If my partner and I have significantly different financial positions, will a court in Toronto question the fairness of your prenup?
The short answer is not necessarily. In Ontario, courts take a closer look at prenups where there is a notable financial disparity when the prenup gets enforced, and these differences disproportionately benefit the wealthier party over the other.
A notable example of how this may play out in court can be found in the case of Iliuta v Li, [2024] OJ No 4909, 2024 ONSC 6115. Here, the court upheld the prenup as it met the formal requirements outlined under the Family Act. However, the judge found that the division of resources in the prenup was unfairly skewed. Making parties readjust how their assets and wealth were divided. This case exemplifies that while a prenup may still be upheld in Ontario, it might still be subject to readjustments to ensure fairness.
If I don’t get independent legal advice, will my prenup agreement not be enforced in court?
In Ontario, independent legal advice is not necessary to obtain a prenup. Still, suppose one party did not fully understand the agreement because of the independent legal advice provided. In that case, courts may question whether this agreement was fair in the first place.
That said, just because someone decides they don’t need or want independent legal advice does not mean a court will automatically toss their prenup or consider it unfair. Cases that look at the unfairness of prenups consider many factors.
To summarize…
Understanding the legal requirements of valid prenuptial agreements in Toronto is crucial to ensure your agreement is valid and enforceable in an Ontario provincial court. To adhere to the legal regulations, the Ontario Family Act has specified that it is crucial to have four main parts. A written agreement, having the agreement be witnessed, having the couple’s signatures be provided, and providing a full financial disclosure reduces the chance of your prenup getting challenged in a court in Toronto. Ultimately, a well-crafted prenup that considers all of these factors can offer couples real peace of mind as they embark on a new journey together with clarity and security.
Anna-Marie Musson is a Family Lawyer with over 20 years’ experience. A graduate of Windsor Law, Anna-Marie began practising in 2003. She was a partner at a prominent national Bay Street law firm before starting her own firm. Anna-Marie helps professionals and high net worth clients navigate the financial, emotional, and legal issues in divorce and separation. She also helps clients preserve their net worth and avoid financial ruin with Marriage Contracts (Pre-nups) and Cohabitation Agreements. Anna-Marie is the host of the Modern Divorce Show on 105.9 The Region and also hosts the upcoming Podcast – Love & Wealth.
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