CANADA
Prenuptial agreements are enforceable in Canada. Courts in Ontario and other common law provinces of Canada previously considered marriage contracts to be contrary to public policy and unenforceable, but the 1978 Family Law Reform Act (now continued in the Family Law Act) specifically authorizes marriage contracts. The Family Law Act provides that a court may set aside a provision for support or a waiver of the right to support in a marriage contract and may determine and order support even though the contract contains an express provision excluding the application of this section:
• If the provision for support or the waiver of the right to support results in unconscionable circumstances;
• If the provision for support is in favor of, or the waiver is by or on behalf of, a dependant who qualifies for allowance for support out of public money; or
• If there is default in the payment of support under the contract or agreement at the time the application is made.
As a result, a provision in the marriage contract either limiting or precluding a claim for future support is very much subject to the discretion of the court at the time an application for support is made.
Even as to assets, prenuptial agreements are not insurmountable. A Canadian court might modify or even ignore an agreements in some circumstances, such as if an unforeseen, financially disabling or devastating event has occurred. Some provinces expressly provide that their courts may set aside a prenuptial agreement if it is "unfair." Thus, Section 51 of British Columbia's Family Relations Act states that even if there is a valid marriage contract, the court may re-divide the assets on the basis of fairness.
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