Family Law

The practice of family law covers a wide range of areas, including paternity, cohabitation, marriage, separation and divorce. You should know your rights in these areas, as well as their enforcement and any corresponding obligations. We are here to assist you through these challenging times in your personal life.

Our family law lawyers are experienced in all aspects of family law including:

  • Access and Visitation Issues
  • Adoptions
  • Child and Spousal Support
  • Child Protection Proceedings
  • Cohabitation Contracts
  • Custody
  • Division of Property (for both Common Law and Married Couples)
  • Divorce (Contested & Uncontested)
  • Exclusive Possession - Matrimonial Home and its Contents
  • Marriage Contracts
  • Mediation, Arbitration and Collaborative Family Law
  • Paternity-Related Matters
  • Pre-Nuptial Contracts
  • Property Division and Equalization
  • Sale of Family Property
  • Same-Sex Couple Family Law Issues
  • Separation Agreements

What is a pre-nuptial agreement?
Should I have a pre-nuptial, cohabitation, or marriage agreement?
Does it matter whether the parties are married or not?
What terms can be included in a pre-nuptial agreement?
Can a pre-nuptial agreement be updated?
Is a family mediation private?
What financial disclosure is needed when entering into a domestic contract, or when family litigation is being contemplated?

What is a pre-nuptial agreement?

In Ontario, a marriage contract can be made either before or during a marriage. If it is made before the marriage, it is referred to as a pre-nuptial agreement. In addition, prospective spouses can enter into a “cohabitation agreement” if living together, without any intention to marry.

The parties may agree on their respective rights and obligations during marriage, cohabitation or upon separation, including:

  • Ownership in or division of property;Support obligations;
  • The right to deal with the education and moral training of their children, but not custody or access thereof; and
  • Any other matter in the settlement of their affairs.
NOTE: Although quite often attempted, occupation rights of a spouse to the matrimonial home cannot be limited under a domestic contract.

Should I have a pre-nuptial, cohabitation, or marriage agreement?

Yes. With a pre-nuptial agreement you are basically agreeing to the terms of your potential separation or divorce. This is often a difficult thing to contemplate, but it is absolutely critical when one party has significantly more assets that the other, or has minor children from a prior relationship.

With a pre-nuptial agreement, each party will know where they will stand in the event that the relationship terminates. One also quickly finds out the motives of the other party when such a party refuses to sign, which then becomes a stumbling block for the parties to move forward. Extreme care must be taken with such contracts, especially because they will be scrutinized many years later, when events do not play out the way the parties intended.

The following are specific circumstances where pre-nuptial agreements are used:

  • The parties are entering a second or subsequent marriage: parties entering a second or third marriage may have legal and financial obligations that are contained in a prior separation agreement, such as child and spousal support payments or even significant life insurance requirements. Pre-nuptial agreements can ensure that your assets are distributed in accordance with your legal obligations. Family discussions of such contracts is encouraged so as to ensure that all parties understand their various rights and obligations should certain events unfold.
  • The parties are entering a cohabitation relationship: the laws of property division relating to married couples do not apply to unmarried couples. Pre-nuptial agreements can provide certainty about the division of property in the event of separation.
  • The parties own significant assets or a business before marriage: upon marriage, a spouse may become entitled to claim ownership of shares in the other spouse’s business. Pre-nuptial agreements can protect the business party’s interests, and prevent an spouse from becoming an unwanted business partner.
  • One party owns a home with substantial equity and it is intended to become the couple’s matrimonial home: the Family Law Act does not give a credit to the party who brought the home into the marriage. The law divides the home 50/50. Pre-nuptial agreements can create a deduction for the value of the home, and allow for, or restrict the sharing of, any increase in value according to a formula agreed to by the parties.
  • The parties invest personal assets, like RRSPs or family gifts towards the purchase of the matrimonial home.
  • One party earns a significantly higher income than the other, or one party intends to forego a career due to the relationship and the raising of children: Pre-nuptial agreements can provide financial security to both parties.
Does it matter whether the parties are married or not?

Yes. Rights to property arise when there is a marriage. The Family Law Act contains two definitions of the word “spouse”.

A spouse means either of two persons who:

  1. are married to each other, or
  2. have entered into a marriage in good faith that is voidable or void.
In order to make a claim for a division of property, or the right to remain in possession of the matrimonial home, the spouse making the claim must be “married” to the person against whom the claim is made.

The second definition of “spouse” deals with support obligations and is wider in its application. Here a “spouse” means a spouse as defined above but also includes either of two persons who are not formally married to each other but have cohabited:

  • continuously for a period of not less than three (3) years, or
  • are in a relationship of some permanence, if they are the natural or adoptive parents of a child. This is what is generally known as a “common law spouse”. Common law spouses have no automatic inheritance rights under the Succession Law Reform Actof Ontario, whereas married couple do! The use of domestic contracts can help the parties to define these rights, including inheritance rights, even if the parties never marry.
What terms can be included in a pre-nuptial agreement?

The parties are free to decide which terms they wish to include except that agreements cannot pre-determine the custody and access of children. A pre-nuptial or cohabitation agreement usually deals with the 4 following areas:

  1. Division of property;
  2. Ownership of property;
  3. Inheritance of property; and
  4. Spousal support obligations.
The following are conditions required for a pre-nuptial agreement to be valid:

  1. The agreement must be in writing, signed, and witnessed;
  2. Full and complete disclosure of assets, debts or other liabilities;
  3. True independent legal representation and advice. Even if there are no disputed issues, each party must retain their own lawyer;
  4. Valid consent – where there is fraud, undue influence, duress, or unconscionable circumstances, consent will be vitiated.
Can a pre-nuptial agreement be updated?

Yes. Some case law from Ontario courts have recognized pre-nuptial agreements as a mechanism by which parties may opt out of selected parts of the Family Law Act, however a party must still know what he or she is giving up in the proposed agreement.

The court has reasoned that it should avoid substituting its idea of what is fair for what the parties believed would be fair at the time the parties entered into the agreement. In this respect, the courts have held that every effort must be made to give effect to the intention of the parties. Where parties to a cohabitation agreement marry each other, the agreement then becomes a marriage contract.

Is a family mediation private?

Yes. All matters discussed are kept confidential and, depending on the matter, independent legal advice may be required when the terms of the settlement are reduced to writing.

What financial disclosure is needed when entering into a domestic contract, or when family litigation is being contemplated?

There are court income/expense and asset/liability forms which will need to be completed.

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