Signing a marriage agreement or cohabitation agreement (also known as “prenuptial agreements” or “prenups”) is a great way for a couple to determine what will happen to their assets in the event of a breakdown of the relationship. Such agreements can also cover items such as spousal support. However, as we saw in a recent decision from the Ontario Superior Court of Justice, the parties to a marriage contract may not want to stick to those terms when a separation eventually occurs.

The relationship

The parties entered into a marriage contract while the mother was still residing in Russia. The contract addressed the issue of spousal support in the event of a separation. According to the contract, “ the father is to provide a lump sum payment of $150,000 to the mother, and provide her with monthly support sufficient to top up her income to $36,000 per year for a period of seven years.” During the last year they were together, the mother had been making $24,000 while the father had made close to $275,000.

The positions of the parties

When the marriage did eventually come to an end, the mother argued that she did not obtain legal advice and had only signed the contract in order to allow the marriage to go ahead.

In response, the father provided the court with a letter written by the mother which read “Hello my dear (father), I’ve just finished to read our marriage contract in Russian. Now I understand very clearly all clauses of this document […] I’d like to tell you I agree with this document and acknowledge that the terms of this contract are fair and reasonable. I wish to sign it voluntarily.”

What to do pending trial

The trial in question wasn’t actually intended to determine whether the marriage contract was valid. Instead, the court had to first determine what to do about spousal support pending resolution of that main issue.

The court cited a 2014 decision from the same court, summarizing that “until it is set aside, there is a presumption that the parties’ executed marriage contract is valid. Where one party seeks to set aside a domestic contract and seeks interim support, support should be ordered in accordance with the marriage contract. Courts should exercise great caution in granting interim relief that contradicts the terms of a contract signed by the parties.”

In addressing the facts at hand, the court wrote,

“If I were to presume, on a temporary basis, that the marriage contract is valid, and limit the mother’s spousal support entitlement to what the contract provides (an amount sufficient to top up the mother’s income to $36,000 per year), then it seems to me that I should also order the father to immediately pay the $150,000 lump sum as well.  The father objects to paying this lump sum on a temporary basis for two main reasons. First, he takes the position that the mother is a significant flight risk, and receiving this important payment will only increase her ability to remove the child from Canada.  In addition, he states that if the marriage contract is ultimately declared invalid, he will have paid to the mother a significant advance towards future spousal support which he may never be able to recover down the road.”

The court ultimately decided that the father’s concerns about making a lump sum payment before the issue was resolved were “compelling.” While the court allowed him to delay making the lump sum payment until the trial was over, the court did order him to make spousal support payments in the meantime.

Contact the exceptional Oshawa family lawyers at Borden Family Law if you are considering entering into a cohabitation agreement or marriage contract with your partner. We have more than 17 years of experience advising clients on family law matters and helping them plan proactively for the future.  We can help protect you in the event of a breakdown of your relationship. Call us at 905-576-6090 or contact us online for assistance drafting a marriage contract or cohabitation agreement. Ask about our flat fees and bundled services.