Domestic Contracts

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 64-89

 

DOMESTIC CONTRACTS

A. TYPES OF DOMESTIC CONTRACTS

e following analysis wi ll focus on “domes tic contracts” i nsofar as t hey

havebeenstatutorilydef‌inedinOntario.Evenintheabsenceofstatu

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tory provis ions, however, married and unma rried cohabitantsare legally

entitled to ent er into bindi ng and enforceable contracts. In some cir-

cumstances, 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 exa mple, the splitt ing of credit s under the

Canada Pension Plan between divorced spouses cannot be circumvented

by a spousal cont ract or separ ation agreement, except where provincial

legislationspecif‌icallypermitssuchcontractingout.

 In addition, cou rts

areentitledtooverridethetermsofspousalcontractsthatpurportto

waive child support rights a nd obligations.

Domestic contr acts, as def‌i ned under provincial and terr itorial stat-

utes in Canada, are formal written contracts signed by the parties and

 See Chrispen v. Topham(),R.F.L.(d)(Sask.Q.B.),af‌f’d(),

R.F.L.(d)(Sask.C.A.).SeealsoAnd erson v. Luoma (),R.F.L.(d)

(B.C.S .C.).

AnActtoAmendtheCanadaPensionPlanandtheFederalCourtAct,R.S.C.

(ndSupp.),c.,s.;seealsoAnActtoAmendtheCanadaPensionPlan

(Spousal Agreement),S.C. , c. .

Richardson v.Richardson (),R.F.L.(d)(S.C.C.).



Domestic Contracts

witnessed, wherebyma rriedcouples and unmarried cohabitants may reg-

ulate th eir rights an d obligations dur ing their relat ionship or on its ter mi-

nation. ere are th ree dif‌ferent kinds of domestic cont racts: (i) marriage

contracts; (ii) cohabit ation agreements; and (iii) separation a greements.

e right of men and women to enter into ag reements or domes-

tic contracts to regulate their af‌fairs is expressly recognized by statute

in several provinces and territoriesbut the legislation is not uniform

throughoutCanada.Becausespacedoesnotpermitadetaileddescription

of the dif‌ferent prov incial a nd territoria l statutes, t he following a nalysis

will exa mine the Onta rio legislation, wh ich has provided the pre cedent

for simila r legislation in s everal other prov inces. Before doing so, how-

ever,itispertinenttoreviewHar tshorne v. Hartshorne,a judgment of

theSupremeCourtofCanada,whichdealtwiththeimpactofamar

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riage contract on a n application for spous al propert y division under t he

FamilyRelations Act (BritishColumbia). While thi s judgment specif‌ica lly

addresses that particular topic, it also providesi nsight intohow such con-

tracts m ight be interpreted and appl ied under statutory propert y regimes

in the provinces and territories.

In Hartshorne v. Hartshorne,thepartiescohabitedfortwelveand

one-half year s and were marrie d for nine of thos e years. It was a s econd

marriageforbothofthem.eyhadtwochildren. Afterthebirthoftheir

f‌irst child,the wife, a lawyer, withdrew from thepractice of lawto assume

afull-timehomemakingandchildcaregivingrole.ehusband,alsoa

lawyer, made it clear to her prior to thei r marriage t hat he would never

again al low his property to be d ivided by reason of a mar riage breakdown.

e husband brought assets of . million into the mar riage, which in-

 See, for example, Fa mily Law Act,R.S.O.,c.F.,s.. Andsee,below,textto

andcontentsofnote.

 See Matrimoni al Property Act,R.S.A.,c. M-,ss.–;Family Relatio ns Act,

R.S.B.C.,c.,s..;Marital Property Act, S.N.B. , c. M-., ss.–

(marriagecontracts, cohabitationagreements, separation agreements); Family Law

Act, R.S.N. , c. F-, ss. – (marriage contracts, cohabitationagreements

separation agreements); Matrimonial Property Act, R.S.N.S. , c. ,ss. –

(marriagecontracts, separation agreements);Fa mily Law Act, S.N.W.T., c. ,

ss.–(marriagecontracts,cohabitationagreements;separationagreements);

Family Law A ct,R.S.O.,c.F.,ss.–(marriagecontracts,cohabitation

agreements, separat ion agreements); Family Law Act ,S.P.E.I.,c.,ss.–

(marriagecontracts, cohabitationagreements, separation agreements); Matri-

monial Property Act, , S.S., , c. M-., ss. – (intersp ousal contracts);

Family Property and Support Act,R.S.Y.,c.,ss.–(marriagecontracts,

cohabitation agreement s, separation agreements).

 []  S.C .R. .