Domestic Contracts

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 65-90

 

DOMESTIC CONTRACTS

A. TYPES OF DOMESTIC CONTRACTS

e following a nalysis w ill focus on “domestic c ontracts” in sofar as they

have been statutorily def‌ined in Ontario. Even in the absence of statu-

tory provisions, however, married and unmarr ied cohabitants are legally

entitled to enter into binding and enforceable contracts. In some cir-

cumstances, the law restricts the extent to which spouses or unm arried

cohabitants can contractual ly waive rights that would otherw ise vest in

them pursuant to statute. For example, the splitting of cred its under the

Canada Pension Plan between divorced spouses cannot be circumvented

by a spousal contract or sepa ration agreement , except where provi ncial

legislation specif‌ical ly permits such contracting out. I n addition, courts

are entitled to override the terms of spousa l contracts that purport to

waive child support rights a nd obligations.

Domestic contracts, as def‌ined under provincia l and territorial stat-

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

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

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

(B.C.S .C.).

An Act to Amend the Ca nada Pension Plan and the Fe deral Court Act, R.S.C . 

(d Supp.), c. , s. ; see also An Act to Amen d the Canada Pension Pl an (Spousal

Agreement),S .C. , c. .

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

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66 CANADIAN FAMILY LAW

witnessed, whereby married couples and unmarried cohabitants may

regulate their right s and obligations during their relationship or on its

termination . ere are three dif‌ferent kind s of domestic contrac ts: (i)

marriage contracts; (ii) cohabitation agreements; a nd (iii) separation

agreements.

e right of men and women to enter into agreements or dome s-

tic contracts to regulate their a f‌fairs is expressly recogn ized by statute

in severa l provinces a nd territories  but the legislation is not uniform

throughout Canada. Because space does not permit a deta iled description

of the dif‌ferent provincial and terr itorial statutes, the followi ng analysis

will exam ine the Ontario legislation, which has provided t he precedent

for similar legislation in several other provinces. Before doing so, how-

ever, it is pertinent to review Hartshor ne v. Hartshorne, a judgment of

the Supreme Court of Canada, which dealt wit h the impact of a mar-

riage contrac t on an application for spousal proper ty div ision under the

Family Relations Act (British Columbia). While this judgment specif‌ically

addresses that particular topic, it also provides insight into how such con-

tracts m ight be interpreted and applied under statutory property regimes

in the provinces and territories.

In Hartshorne v. Hartshorne, the parties cohabited for twelve and parties cohabited for twelve and

one-half years and were married for nine of those years. It was a se cond

marriage for both of them. ey had two chi ldren. After the birth of thei r

f‌irst child, the wi fe, a lawyer, withdrew from the practice of law to assume

a full-time homemaki ng and child caregiv ing role. e husband, also a

lawyer, made it clear to her prior to their marriage that he would never

again al low his propert y to be divided by rea son of a marriage brea kdown.

 See, for example,See, for example, Family Law Act , R.S.O. , c. F., s. . And see text to and con-

tents of note , below in th is chapter.

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

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

(marriage contrac ts, cohabitation agreements, s eparation agreements); Family Law

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

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

(marriage contrac ts, separation agreement s); Family Law Act, S.N.W.T. , c. ,

ss. – (marriage contr acts, cohabitation agreements ; separation agreements);

Family Law Act, R.S.O. , c. F., ss. – (marria ge contracts, cohabitation

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

(marriage contrac ts, cohabitation agreements, s eparation agreements); Matri-

monial Propert y Act, ,S .S. , c. M-., ss. – (interspousal contrac ts);

Family Property and Suppo rt Act, R.S.Y. , c. , ss. – (marriage contrac ts,

cohabitation agreement s, separation agreements).

 []  S.C.R. .