Can an Ontario Marriage Contract Decide Who Gets Child Custody? Markham Chinese Lawyer Miao He Tells You Why Not

A lot of people ask me: “We haven’t separated yet. Can we sign an agreement now that says after separation the child will live with me, and the other parent only gets visits?”

Answer: No.

In Ontario, a prenup and a postnup are the same thing legally. Both are called a marriage contract. You can talk about property and spousal support. You can’t lock in the child.

Can we agree on who the child lives with?

No.

What we call “custody” in daily talk is two things in Ontario: who makes major decisions, and who the child lives with and how time is shared. Now called decision-making responsibility and parenting time.

For both, the court only looks at the best interests of the child. Whatever you wrote in the agreement, the court can ignore it.

What about a prenup?

No. Same.

Signed before or after marriage, it’s still a marriage contract under s. 52. Neither can decide the child.

What does the law let you write, and what not?

Section 52(1): you can write how property is divided, support obligations, and how you want to guide the child’s education and character.

You can’t write custody or access, which is now decision-making responsibility and parenting time.

Simply put, writing “we hope the child goes to this school” is fine. Writing “the child lives with me, the other parent sees the child once every two weeks” is not enforceable.

Two more rules from the court side:

s. 56(1), for anything about the child’s education, custody or access, the court can ignore the agreement if it’s in the child’s best interests.

s. 56(1.1), for child support, if what you wrote is unreasonable compared to the Federal Child Support Guidelines, the court can ignore it.

What happens if we wrote “the child lives with me”?

It doesn’t work.

After separation the other parent can still go to court to ask for a new parenting arrangement. What you gave up on property to get that sentence, you may not get back.

Can we trade child support for the house?

No.

“I’ll give you more house, you waive child support” doesn’t work. Child support is the child’s right. Parents can’t use it to offset debts between themselves.

What if I gave up too much on property?

The child part: no. The property part: very likely yes.

Without an agreement, the default is equalization of net family property. You equalize the growth during the marriage. What you gave up in the agreement, you likely really gave up.

Don’t use the child as a bargaining chip for property. Property you agree on yourselves, the court will generally uphold. The child is different.

You may give up property to get the child and end up with less. Result: the court upholds the less property you agreed to, but reheats the child issue, and you don’t get what you thought you would.

What if I was forced to sign after an affair?

It’s not automatically void, but it can be set aside.

s. 56(4): no disclosure of major assets or debts, didn’t understand what you were signing, duress, undue influence, misrepresentation, all can be grounds.

If you signed overnight after an affair, the court will look at whether you had a real choice, whether you had time to get legal advice, whether the numbers were on the table. The affair itself is not a ground.

Best for each side to have their own lawyer. Ontario doesn’t force you to have one, but the law requires both sides to clearly understand what they are signing.

Without a lawyer, a lot of legal wording is hard to understand. Whoever didn’t have a lawyer will later claim they didn’t understand back then, and ask the court to set the agreement aside.

FAQs

Can we agree in advance that after separation the child will live with one parent? No. You can’t do it in a prenup or postnup, it’s invalid even if you write it. Only a separation agreement can deal with parenting arrangements. And even then, the court can change it based on the child’s best interests.

Is “no child support” enforceable? No. If the court finds it unreasonable, it will ignore it.

Can a forced agreement be set aside? Possibly. Depends on the evidence.

If you want to put property and support in writing before separation, or you already have a marriage contract and aren’t sure if the child and property terms work, book an initial consultation (30 minutes, $220+HST). Call 647-930-6688.

This article provides general legal information only. It is not legal advice and does not create a solicitor-client relationship.