CA, MC, SA, and Prenup

• s.53 Family Law Act (FLA) provides that a CA may be entered into by persons of the opposite or same sex who are cohabiting or intend to cohabit but are not married and have no present intention to marry.
• s.51 provides that CA may regulate rights and obligations during cohabitation, on cessation of cohabitation, or on death.
  • Same-sex couples qualify per statutory amendments implemented as a consequence of the Supreme Court of Canada (SCC) judgement in M v H.
• The court may predetermine ownership division of property, support rights, obligations, the right to direct education, moral upbringing of children, and any other matter in settlement of affairs (Moses Estate v Metzer)
• s.53(2) provides that if the parties later marry, the CA is deemed an MC (marriage contract).

Can CA govern the following matters?

• Govern property division?
  • Yes.
• Govern “spousal” support?
  • Yes.
• Govern child support?
  • Yes.
• Govern custody of access to child?
  • No, s.53(1)(c) precludes MC from determining custody or access to child.
• Govern decision-making power on child?
  • Partially, s.53(1)(c) allows CA to define rights to direct education and moral upbringing (but not general decision-making power), subject to the court’s discretion under s.56. 

s.51 Family Law Act (FLA) empowers a couple to enter into marriage contracts (MC) before or after marriage (if they are still cohabiting); The MC cannot be entered into by unmarried cohabitants whether of the same or opposite sex.

• s.52(1) may regulate legal rights and obligations during marriage, on separation, annulment, dissolution, or death.
• Regulating “ownership” and “division” of property means MC takes precedence over statutory equalization in Part I of the FLA.  

• Can MC govern the following matters?

  • Govern property division?
    • Partially. As to the matrimonial home, unlike the SA, the MC cannot limit rights conferred on one spouse by Part II of FLA 
      • s.19 provides both spouses have equal rights in the absence of a separation agreement or order to the contrary, and neither spouse can unilaterally dispose of (encumber) their interest. This means in an MC, the parties cannot write down something like “the house interest will be 60/40 split if separated, instead it’ll always be 50/50. 
      • However, s.52(2) allows MC to determine: 
        • rights of legal ownership in the matrimonial home
        • to exclude an interest in a property (for example, the husband wants to keep the cottage he inherited from his grandmother) 
        • to set up value from equalization
  • Govern “spousal” support?
    • Yes, subject to the court’s discretion to override MC under s.33(4) or s.56 FLA.
  • Govern child support?
    • Yes, subject to the court’s discretion to override MC under s.33(4) or s.56 FLA
  • Govern custody of access to child?
    • No, s.52(1) FLA precludes MC from determining custody or access to children.
  • Govern decision-making power on child?
    • Partially, s.52(1)(c) FLA allows the CA to define rights to direct education and moral upbringing (but not general decision-making power), subject to the court’s discretion under s.56 FLA. 

The SA should be done before the marriage.

• The SA could be part of the pre-up.
• s.54 Family Law Act (FLA) provides that an SA may be entered into by persons of the opposite or same sex who have cohabited and are living separately or apart.
• s.52 and s.54 provide that if an SA is entered into just before separation, the SA (again, which should be entered before the marriage but not before the separation) can then be considered as effective as a Marriage Contract (MC).

Can SA govern the following matters?

• • Govern property division?
    • Yes, and there is no limitation. Under s.54(d), in an SA, the parties are able to set up the percentage of the interest on the properties, as there are no limitations on the possessory and disposition rights of a matrimonial home as in an MC (unlike an MC).
  • Govern “spousal” support?
    • Yes, subject to the court’s discretion to override the SA under s.33(4) or s.56 FLA, meaning if there is an unreasonable agreement in spousal support in SA, the victim party can bring it to court to claim their interest.
  • Govern child support?
    • Yes, subject to the court’s discretion to override the SA under s.33(4) or s.56 FLA.
  • Govern custody of access to child?
    • Yes, subject to overriding provision in s.56(1) FLA.
  • Govern decision-making power on child?
    • Yes, this means under s.54(d), in an SA, there are no limitations on the custody regulation, but it is subject to the overriding provision in s.56(1) FLA.

The Prenuptial Agreement (Preup) is essentially a hybrid of an MC and an SA. But why does this hybrid exist?

• The concept and framework of a Preup originate from an MC. However, when it comes to the division of assets and child custody rights at the time of separation, an SA holds more authority. These are the strengths of an SA, and thus, the Preup incorporates these advantages.
• MC and SA are two legal concepts with similarities and differences. Explaining these to clients can be challenging for lawyers. Therefore, it makes sense to merge the two in line with trends and the needs of the general public, creating a single, more intuitively named “Preup”.