Canadian Prenups

Prenuptial agreements are gaining popularity in Canada.

Prenuptial agreements are gaining popularity in Canada. In addition, they are regularly enforced by courts. Prior to 1978, prenuptial agreements in Canada were not enforced. However, the 1978 Family Law Reform Act specifically authorized marriage contracts, and they have existed in the country ever since.

Prenups in Canada

A prenuptial agreement in Canada must be contained in writing, signed by both parties and witnessed. The agreement may detail a broad range of matters, including how property is owned or divided, spousal support, matters related to the education and raising of children (with the exception of issues concerning custody of children), to name a few.

Like in most countries, there are some exceptions to prenups in Canada.

The Family Law Act provides that a court may not enforce a provision for support or a waiver of the right to spousal support if…
a. If the provision for support or the waiver of the right to support results in unconscionable circumstances;

b. If the provision for support is in favor of, or the waiver is by or on behalf of, a dependant who qualifies for allowance for support out of public money; or

c. If there is default in the payment of support under the contract or agreement at the time the application is made.

A court can also modify a Canadian prenuptial agreement if enforcing it would create financial hardship to a party.

Here are some examples and caselaw:

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Ontario’s Family Law Act permits a court to set aside a prenuptial agreement or any portion thereof if a party failed to disclose significant assets or liabilities, if a party did not understand the nature or consequences of the contract, or otherwise, in accordance with the law of contract. Family Law Act, R.S.O. 1990, Ch. F.3., Sec. 56(4).
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Nova Scotia’s Matrimonial Property Act allows for non-enforcement of a prenuptial agreement if any term is “unconscionable, unduly harsh on one party or fraudulent.” Matrimonial Property Act, R.S.N.S. 1989, Ch. 275, Sec. 29.
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-Saskatchewan allows a court to redistribute property where an interspousal contract was unconscionable or grossly unfair at the time it was entered into. Family Property Act, S.S. 1997, Ch. F-6.3, Sec. 24(2).
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New Brunswick permits a court to disregard a provision of a prenuptial agreement if the spouse did not receive independent legal advice and application of the provision would be inequitable. Marital Property Act, S.N.B. 1980, Ch. M-1.1, Sec. 41.

Read the fine print of the Family Law Act here: olr.org/wp-content/uploads/2018/01/olr_11.1_Tennenhouse.pdf

Disclosure: HelloPrenup is not a law firm, and cannot offer legal advice or representation. If you are looking for advice or representation regarding your specific situation, you should contact an attorney in your state. Check out our terms of use here.

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