What Are Marriage Contracts and Cohabitation Agreements?

Marriage Contracts and Cohabitation Agreements are two types of domestic contracts in which persons who are cohabiting or married or intend to can establish and regulate their respective rights and obligations to each other throughout the course of their relationship and upon the end of the relationship.[1]

The Limits of Freedom to Contract Child Support and the Courts Role

When drafting such contracts, the parties have considerable freedom to determine the terms of their agreement.[2] However, the courts’ acceptance and enforcement of such agreements hinges on the integrity of the negotiation process and with respect to some issues the reasonableness of the contractual terms .[3]

While parties are afforded the freedom to include provisions related to child support, these are subject to especially careful scrutiny by the courts. Child support is the right of the child, and this entitlement cannot be waived or materially limited by parents within a domestic contract without running the risk that such waiver or limitation will be completely disregarded by the court.[4] The Family Law Act of Ontario allows parties to include provisions respecting support in a domestic contract. However, under both the Family Law Act and the Divorce Act, such agreements with respect to child support are not binding on a court even if the agreement was fairly negotiated.  The courts are empowered to review and disregard any child support terms in a domestic contract if they are deemed unreasonable having regard to the child support guidelines as well as to any other provision relating to support of a child.[5]

However, it has been accepted by the courts that mere non-compliance with the child support guidelines is not enough to disregard the child support provisions of a domestic contract.[6] Instead, the court will assess whether the child support provisions adequately address the needs of the child, taking into consideration other provisions within the domestic contract.[7] For example, if the domestic contract includes provisions for the transfer of property or other financial benefits which continue to meet the needs of the child, in whole or in part, such provisions may be upheld and enforced by a court.[8]

When Addressing Child Support In Advance Can Be Practical

There are some practical scenarios in which addressing child support in advance can make sense, despite the court’s overriding authority to ensure the terms are reasonable. Two key examples include:

• Shared Custody Situations: Where the child spends 40% or more of the time with each parent, courts have discretion to depart from the Guidelines. These cases often result in litigation over how to calculate support. Parties may wish to avoid that uncertainty by setting out how support will be handled in their agreement—for instance, by using a set-off formula or sharing specific expenses.[9]
• High-Income Payors: Where the payor’s income exceeds $150,000 annually, courts have the discretion to award more or less than the Guideline amount. A domestic contract can specify how support will be calculated above that threshold, providing greater predictability for both parties.[10]

Final Thoughts: Proceed With Caution, But Don’t Rule It Out

Importantly, there is very little case law in Ontario addressing the enforcement of child support provisions in marriage and cohabitation agreements that significantly deviate from the Child Support Guidelines. It is likely that most parties recognize the inherent risks of incorporating such terms within their contracts, as they may face the possibility of having their agreements overridden and disregarded by the court.

In conclusion, the negotiation  of marriage contracts and cohabitation agreements to address the issue of child support is a delicate and nuanced process that requires careful consideration of the rights and responsibilities of all parties involved and careful regard for ensuring the needs of children are met fairly and reasonably but may be worth undertaking to avoid future costly disputes, especially for payors whose incomes are over $150,000 per year or have complicated income streams where determining their income might be a complicated process.

[1] Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 8^th ed (Toronto: Irwin Law, 2020) 55.
[2] Rick v Brandsema [2009] SCC 10 at para 45.
[3] ibid.
[4] D.B.S. v S.R.G. [2006] SCC 37 at para 38.
[5] Family Law Act, RSO1990, c. F.3, s 56(1.1).
[6] Spencer v Irvine [1999] CarswellOnt 1365 at para 7.
[7] ibid.
[8] ibid.
[9] Federal Child Support Guidelines, SOR/97-175, s 9.
[10] Federal Child Support Guidelines, SOR/97-175, s 4.