Domestic Contracts

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 56-85

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 

Domestic Contracts

A. TYPES OF DOMESTIC CONTRACTS

e following an alysis will fo cus on “domestic contracts” i nsofar as they have

been statutorily dened in Ontario. Even in the absence of statutory provi-

sions, however, married and u nmarrie d cohabitants are lega lly entitled to

enter into binding and enforceable contrac ts. In some circumstances, the l aw

restricts the e xtent to which spouses or un married coh abitants can contrac-

tually wa ive rights that wou ld otherwise vest i n them pursuant to statute.

For example, the splitt ing of credits under the Canada Pension Pl an between

divorced spouses can not be circumvented by a spousal contr act or separation

agreement, except where prov incial legislation speci cally permits such con-

tracting out. In addition, courts are ent itled to override the terms of spous al

contracts that pur port to waive child suppor t rights and obligations.

Domestic contracts, as dened u nder provincial a nd territorial st atutes

in Canada, a re formal written contract s signed by the parties and witnessed ,

whereby married couples a nd unmarr ied cohabitants may reg ulate their

rights and oblig ations during their relat ionship or on its termination. In On -

tario, there are ve d ierent kinds of domestic cont racts: () marri age con-

tracts; () cohabitation agreements; ( ) separation agreements; () paternity

agreements; and () f amily arbitration agreements.

 See Chrispen v Topham (),  RFL (d)  (Sask QB), a ’d (),  RFL (d)  (Sask

CA). See also Anderson v Luoma (),  RFL (d)  (B CSC).

An Act to Amend the Ca nada Pension Plan and the Federal Court Act , RSC  (d Supp),

c , s ; see also An A ct to Amend the Canada Pension Plan (Spous al Agreement), SC ,

c . See Giesbrecht v Giesbrecht,  SKQB .

Richardson v Richardson (),  RFL (d)  (SCC).

 See Family Law Act, RSO , c F., s . And see tex t accompanying note , below.

Chapter : Domestic Contracts 

e right of men and women to enter into agree ments or domestic con-

tracts to regulate their aairs is expressly recognized by statute in several

provinces and terr itories but the legislat ion is not uniform t hroughout Can-

ada. Because space does not per mit a detailed description of t he dierent prov-

incial and ter ritorial statutes, the fol lowing analysis w ill exami ne the Ontario

legislation, whic h has provided the precedent for simil ar legislation in several

other provinces. Before doing so, however, it is per tinent to review the judg -

ments of the Supreme Court of Ca nada in Hartshor ne v Hartshorne and Rick

v Brandsema. Although both of these cases focused on the British Columbi a

Family Relations Act and that statute has now been superseded by the Family

Law Act, which came into force on  March , the rea sons for judgment in

both cases will continue to strongly inuence courts across Canada, including

those in British Columbi a, with respect to t he eect of prenuptial a nd post-

nuptial agreements on m atrimonia l property rights. e for mer case dealt

with the impact of a m arriage contract on an appl ication for spousal property

division. W hile the judgment spec ically addresses t hat particu lar topic, it

also provides insig ht into how such contracts might be inter preted and ap-

plied under statutory prop erty regimes in other provinces and ter ritories. In

Hartshorne v Hartshorne, t he parties cohabited for twe lve and one-half yea rs

and were married for nine of those years. It was a second m arriage for bot h

of them. ey had two ch ildren. After the birt h of their rst child, the w ife, a

lawyer, withdrew f rom the practice of law to assume a ful l-time homemaking

and child ca regiving role. e husband, also a l awyer, made it clear to her prior

to their marr iage that he would never again allow h is property to be div ided

by reason of a marr iage breakdow n. e husband brought assets of . mi l-

lion into the marr iage, which included his law practice, wherea s the wife had

no assets and was heavi ly in debt at the time of the ma rriage. At t he hus-

 See Matrimonial Property Act, RSA  , cM -, ss –; Family Law Act, SBC , c ,

ss –; Marital Property Act, SNB , c M-. , ss – (marr iage contracts, cohabit a-

tion agreements, separation agreements); Family Law Act, RSNL , c F-, ss –

(marriage contrac ts, cohabitation agreements, separation ag reements); Matrimonial

Property Act, RSNS  , c , ss – (mar riage contracts , separation agreeme nts);

Family Law Act, SNWT , c , ss – (ma rriage contract s, cohabitation agreeme nts,

separation agreements); Family Law Act, RSO , c F., ss – (marria ge contracts,

cohabitation agreements, separation agreements); Family Law Act, SPEI , c , ss –

 (marriage contrac ts, cohabitation agreements, separation ag reements); Matrimonial

Property Act, , SS , c M-., ss –  (interspousal contra cts); Family Property

and Support Act, RSY , c , s s – (marr iage contracts, cohabit ation agreements,

separation agreements).

 []  SCR .

  SCC , [] SCJ No .

 SBC , c .