Domestic Contracts

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 64-94

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 

Domestic Contracts

A. TYPES OF DOMESTIC CONTR ACTS

e following analysis wil l focus on “domestic contracts” insofar as they have

been statutor ily def‌ined in Ontario. Even in the absence of statutory prov i-

sions, however, married and unmarr ied cohabitants are legally entitled to

enter into binding and enforceable contracts. In some circumstances, the law

restricts t he extent to which spou ses or unmarried cohabitants can contrac-

tually waive r ights that would otherw ise vest i n them pu rsuant to statute.

For example, the splitting of credits under the Canad a Pension Plan between

divorced spouses cannot be circumvented by a spousal contract or separation

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

tracting out. In addition, courts are entitled to override the terms of spousal

contracts that pur port to waive child support r ights and obligations.

Domestic contracts, as def‌ined under provinc ial and territori al statutes

in Canada, a re formal written contracts sig ned by the parties and witnessed,

whereby married couples and un married cohabitants may regul ate their

rights and obligations du ring their relationship or on its termi nation. In On-

tario, there are f‌ive dif‌ferent kinds of domestic contrac ts: () marr iage con-

tracts; () cohabitation agre ements; () separation agreements; () patern ity

agreements ; and () fa mily arbitration agreements.

 See 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 Cana da Pension Plan and the Federal Court Ac t, R.S.C.  (d Supp.),

c. , s. ; see al so An Act to Amend the Canada Pen sion Plan (Spousal Agreement), S.C.

, c. .

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

 See Family Law Ac t, R.S.O. , c. F., s. . And see te xt accompanying note  , below.

Chapter : Domestic Cont racts 

e right of men and women to enter into agreements or domestic con-

tracts to regulate their af‌fai rs is ex pressly recognized by statute in several

provinces and terr itories but the legislation is not uniform throughout Can-

ada. Because space does not permit a deta iled descript ion of the dif‌ferent

provincial and terr itorial statutes, the follow ing analysi s will examine the

Ontario legi slation, which has provided the preced ent for similar legislation

in several other provinces. Before doing so, however, it is pertinent to review

the judgments of the Supreme Court of Can ada in Hartshorne v. Harts horne

and Rick v. Brandsema. e former case dealt with the impact of a ma rriage

contract on an application for spousal property division under the Family

Relations Act (B.C.). While the judgment specif‌ical ly addresses that particular

topic, it a lso provides insig ht into how such contracts might be interpreted

and applied under statutor y propert y regimes in other provinces and ter-

ritories. In Hartshorne v. Hartshor ne, the parties cohabited for twelve and

one-half years and were marr ied for nine of those years. It w as a second

marri age for both of them. ey had t wo children. After t he birth of their

f‌irst ch ild, the w ife, a law yer, withdrew f rom the practice of law to assume

a fu ll-time homemak ing and chi ld caregiving role. e husband , also a law-

yer, made it clear to her pr ior to their marriage that he would never again

allow his property to be divided by reason of a marr iage breakdow n. e

husband brought assets of . mill ion into the m arriage, which inc luded

his l aw practice, whereas the wife had no ass ets and was heavily in debt at

the time of the marriage. At the husband’s insistence, the s pouses executed

a marr iage agreement decl aring the par ties separate as to property, subject

to the wife be ing entitled to a  percent interest in the matrimonial home

for each year of marriage up to a maximum of  percent. e wife received

independent lega l advice t hat the ag reement was grossly unfair but signed

it with a few amendments, including her r ight to spousal support. P ursuant

 See Matrimonial Prop erty Act, R. S.A. , c. M- , ss. –; Family Relat ions Act,

R.S.B.C . , c. , s. .; Mar ital Property Ac t, S.N.B. , c. M-. , ss. –

(marri age contracts, cohabit ation agreements, sepa ration agreements); Family L aw Act,

R.S.N.L . , c. F-, ss. – (ma rriage contract s, cohabitation agree ments separation

agreements); Matr imonial Property A ct, R.S.N.S.  , c. , ss. – (m arriage con-

tracts, sep aration agreements); Family L aw Act, S.N.W.T. , c. , ss. – (marriage

contracts, coh abitation agreements; s eparation agreeme nts); Family Law Act, R.S.O.

, c. F., ss. – (mar riage contracts, co habitation agreement s, separation agre e-

ments); Family Law Act, S. P.E.I. , c. , ss. –  (marriage cont racts, cohabitatio n

agreements, s eparation agreeme nts); Matrimonial Propert y Act, , S.S. , c. M-.,

ss. – (inter spousal contract s); Family Property and Suppo rt Act, R.S.Y. , c. , ss.

– (mar riage contract s, cohabitation agree ments, separation ag reements).

 []  S.C.R. .

  SCC , [] S.C. J. No. .