Chapter 4: Domestic Contracts

• Date: 14 April 2025

48

 

Domestic Contracts

A. TYPES OF DOMESTIC CONTRACTS

e following analysis will focus on “domestic contracts” insofar as how they have been statu-

torily dened in Ontario. Even in the absence of statutory provisions, however, married and

unmarried cohabitants1 are legally entitled to enter into binding and enforceable contracts. In

some circumstances, the law restricts the extent to which spouses or unmarried cohabitants

can contractually waive rights that would otherwise vest in them pursuant to statute. For

example, the splitting of credits under the Canada Pension Plan between divorced spouses

cannot be circumvented by a spousal contract or separation agreement, except where prov-

incial legislation specically permits such contracting out. 2 In addition, courts are entitled

to override the terms of spousal contracts that purport to waive spousal support and child

support rights and obligations.3

Domestic contracts, as dened under provincial and territorial statutes in Canada , are

formal written contracts signed by the parties and witnessed, whereby married couples and

unmarried cohabitants may regulate their rights and obligations during their relationship or

on its termination. In Ontario, there are ve dierent kinds of domestic contracts: (1)marriage

contracts; (2)cohabitation agreements; (3)separation agreements; (4)paternity agre ements;

and (5)family arbitration agreements.4

 See Chrispen v Topham (),  RFL (d)  (Sask QB), a’d (),  RFL (d)  (Sask CA). See also

Anderson v Luoma (),  RFL (d)  (BCSC).

 An Act to Amend the Canada Pension Plan and the Federal Courts Act, RSC , c  (d Supp), s ;

see also An Act to Amend the Canada Pension Plan (Spousal Agreement), SC , c . See Giesbrechtv

Giesbrecht,  SKQB . As to contracting out of the splitting of credits under the Canada Pension

Plan in Alberta, see Cerra v Zarowny,  AB QB  at paras –.

 See Chapter , Section N.

 See Family Law Act, RSO , c F., s . And see text accompanying note , below.

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Domestic Contracts 49

e right of men and women to enter into agreements or domestic contracts to regulate

their aairs is expressly recognized by statute in several provinces and territories,5 but the

legislation is not uniform throughout Canada.

Because space does not permit a detailed des cription of the dierent provincial and

territorial statutes, the following analysis will focus on the Ontario legislation, which has

inuenced legislation in several provinces.6 Before doing so, howe ver, it is appropriate to

address the recognition and enforcement of a Mahr by Ontario and other Canadian courts.

According to Muslim tradition, a prenuptial agreement may be entered into between the

bride and groom whereby he will pay her a designated amount in the event of marriage

breakdown. Such an agreement is known as a Mahr. Canadian courts of rst instance have

divided on the question of the enforceability of a Mahr. In Nathoo v Nathoo,7 Amlani v

Hirani,8 and NMMv NSM,9 the British Columbia Supreme Court recognized the validity

of a written Mahr. In contrast, in Kaddoura v Hammoud,10 Rutherford J, of the Ontario

Superior Court of Justice, held that the court should not enter into a “religious thicket” by

determining the rights and obligations of the parties under a Mahr. Since that judgment,

the Supreme Court of Canada in Bruker v Marcovitz11 has ruled that the fact that a dispute

has a religious aspect does not render it non-justiciable. Moral and religious obligations

can be transformed into legally binding obligations if the relevant requirements imposed

by provincial laws are satised. Since that ruling, courts in Ontario have upheld the validity

and enforceability of a Mahr.12 In the words of JurianszJA, of the Ontario Court of Appeal

in Bakhshi v Hosseinzadeh:

[20] Ontario courts have dealt with obligations under a Maher [sometimes called Mahr in

caselaw] on a number of occasions: Ghaznavi v. Kashif-Ul-Haque, 2011 ONSC 4062 (CanLII);

 See Matrimonial Property Act, RSA , c M-, ss –; Family Law Act, SBC , c , ss –;

Marital Property Act, SNB , c M-., ss – (marriage contracts, cohabitation agreements,

separation agreements); Family Law Act, RSNL , c F-, ss – (marriage contracts, cohabitation

agreements, separation agreements); Matrimonial Property Act, RSNS , c , ss – (marriage

contracts, separation agreements); Family Law Act, SNWT , c , ss – (marriage contracts,

cohabitation agreements, separation agreements); Family Law Act, RSO , c F., ss – (marriage

contracts, cohabitation agreements, separation agreements); Family Law Act, SPEI , c , ss –

(marriage contracts, cohabitation agreements, separation agreements); Matrimonial Proper ty Act, 1997,

SS , c M-., ss – (interspousal contracts); Family Property and Support Act, RSY , c ,

ss – (marriage contracts, cohabitation agreements, separation agreements).

 For critically important general principles relating to the interpretation and application of spousal

agreements and domestic contracts to the diverse statutory property regimes across Canada , see Hart-

shorne v Hartshorne,  SCC  and Rick v Brandsema.  SCC , both of which are discussed in

some detail in Julien D Payne & Marilyn A Payne, Canadian Family Law, th ed (Toronto: Irwin Law,

) at –; and see Anderson v Anderson,  SCC .

 [] BCJ No  (SC).

  BCSC .

  BCSC ; see also Kariminia v Nasser,  BCSC .

 [] OJ No  (Sup Ct).

 [] SCJ No . See also AM v MS,  BCSC ; Kariminia v Nasser,  BCSC .

 Khanis [Khamis] v Noormohamed,  ONCA ; Bakhshi v Hosseinzadeh,  ONCA ; see also

Yar v Yar,  ONSC  (Mahr set aside); Abdollahpour v Banifatemi,  ONCA ; Khalid v Jalil,

 ONSC  (Div Ct).

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