Spousal support, often called alimony, is one of the most contentious issues in Canadian divorce. It’s also one of the primary reasons couples seek prenuptial agreements. The ability to define (or waive) spousal support obligations before marriage is a powerful planning tool, but Ontario law places important limits on what these clauses can accomplish.
Understanding those limits is essential if you want your agreement to hold up when it matters.
Can You Waive Spousal Support in a Prenup?
Technically, yes. Ontario’s Family Law Act allows couples to include spousal support provisions in their marriage contracts, including waivers. Both parties can agree that neither will seek spousal support from the other in the event of separation.
However, and this is a significant caveat, Ontario courts retain the discretion to override spousal support waivers if enforcing them would result in unconscionable circumstances or if one spouse would qualify for social assistance as a result. Under Section 33(4) of the Family Law Act, a court may set aside a support provision in a domestic contract and determine support in accordance with the Act.
This means that a complete spousal support waiver is not guaranteed to survive judicial review, especially if circumstances have changed dramatically since the agreement was signed. A partner who gave up their career to raise children for 15 years has a much stronger argument for overturning a waiver than a partner who maintained their career throughout the marriage.
What Courts Look at When Reviewing Support Clauses
Ontario courts evaluate spousal support clauses through several lenses. They consider whether both parties received independent legal advice when signing the agreement. They look at whether there was full financial disclosure at the time of signing. They examine whether the terms were fair when signed and whether they remain fair at the time of enforcement. And they assess whether circumstances have changed so significantly that enforcing the clause would be unconscionable.
The Miglin v. Miglin decision from the Supreme Court of Canada established a two-stage test for reviewing spousal support provisions in domestic contracts. First, was the agreement fairly negotiated? Second, does it still substantially reflect the original intention and remain fair in light of current circumstances? This framework applies across Canada. For more on how provincial laws shape these requirements, visit Legal Requirements by Province.
Strategies for Stronger Support Clauses
Rather than an absolute waiver, family lawyers often recommend more nuanced approaches. A time-limited support obligation (for example, support for one year per five years of marriage) can be more enforceable than a blanket waiver. A clause that caps the amount rather than eliminating it entirely may also be more likely to survive review.
Escalation clauses are another effective strategy, tying support amounts to the duration of the marriage or specific milestones like having children. The longer the marriage, the more support is provided. This approach reflects the evolving nature of the relationship and is viewed more favourably by courts.
Including a review schedule in your prenup, agreeing to revisit the support terms every five years or after major life changes, also strengthens enforceability by demonstrating that both parties intended the terms to remain fair over time.
The Career Sacrifice Factor
The strongest challenges to spousal support waivers come from partners who sacrificed their career for the benefit of the family. If one spouse left the workforce, reduced their hours, or turned down promotions to raise children or support the other’s career, courts are deeply sympathetic to their claim for support, regardless of what the prenup says.
The best prenups anticipate this possibility. They include provisions that adjust support obligations if one partner significantly reduces their career involvement. They recognize that the financial impact of career sacrifice compounds over time: lost income, reduced pension contributions, skill erosion, and diminished re-employment prospects.
Spousal Support vs. Property Division
It’s worth understanding the relationship between spousal support and property division. In Ontario, these are separate but related concepts. Property is divided through equalization; support is a separate ongoing obligation. A prenup can address both, but the strategies for each are different. To learn more about how the I Do Prenup process handles these topics, visit How It Works.
Some couples use property division provisions as a substitute for support. For example, agreeing that one partner will receive a larger share of property in exchange for waiving support claims. This approach can work, but it requires careful drafting to ensure both provisions are internally consistent and fair.
Plan your spousal support terms with confidence. Start your marriage contract at I Do Prenup.
Frequently Asked Questions
Q: Can I completely waive spousal support in a prenup in Ontario?
You can include a waiver, but Ontario courts retain the power to override it if enforcement would result in unconscionable circumstances or leave one spouse on social assistance.
Q: What makes a spousal support clause more enforceable?
Clauses that are nuanced (time-limited, capped, or escalating), supported by full financial disclosure and independent legal advice, and regularly reviewed are significantly more likely to be enforced.
Q: Does Miglin v. Miglin apply in Ontario?
Yes. The Miglin framework from the Supreme Court of Canada applies nationally. It establishes a two-stage test: was the agreement fairly negotiated, and does it remain substantially fair?