CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
High‑Income Exceptions (Soft Cap) When the payor’s income exceeds CAD350,000, the SSAG recognise that formulaic calculations can become unfair or produce windfalls. • Under CAD1 million: the formula is generally applied. • CAD1–3 million: a mix of formula and discretion based on the recipient’s needs. • Over CAD3 million: greater discretion to award amounts below SSAG ranges. Interim Spousal Support Interim support is available immediately after separa ‑ tion. 2.5 Prenuptial and Postnuptial Agreements Canadian family legislation encourages the use of fairly negotiated prenuptial agreements and marriage contracts, made with independent legal advice and full and proper financial disclosure. These agreements are generally enforceable, but they remain subject to provincial and territorial legislation governing spousal support, family property, and exempt property. Courts may also consider them when addressing spousal support under the Divorce Act. By contrast, child sup ‑ port and parenting arrangements are less enforceable because courts have an overriding duty to protect the best interests of children. The rights of children cannot be bargained away. Both spousal support and property agreements can be set aside or modified where formation require ‑ ments are not met or where the result is unfair, signifi ‑ cantly imbalanced, or contrary to statutory principles of procedural and substantive fairness. To be upheld and enforced, the following factors are key. • Written and witnessed agreements are preferred, although even oral or “kitchen table” agreements may still be enforced. • Full and honest disclosure of income and assets, along with proper valuations, is essential; failure to disclose may result in the agreement being voided or disregarded.
• Informed consent, ideally supported by inde ‑ pendent legal advice (ILA) and sufficiently lengthy negotiations, is important; last‑minute, pressured execution – such as on the eve of a wedding – can undermine enforceability. • Avoiding undue pressure is crucial, particularly in family contexts involving financial inequality, where the wealthier spouse may exert inordinate influ ‑ ence. • The bargain must not be unconscionable, grossly unfair, unduly harsh, or contrary to public policy. • Several provincial statutes explicitly permit courts to set aside or vary agreements that are signifi ‑ cantly unfair, unconscionable, or unduly harsh at formation, or that produce serious hardship upon relationship breakdown. • Property agreements are generally enforceable, subject to concerns about procedural and substan ‑ tive fairness, with certain exceptions such as rules governing the family home. • Spousal support waivers and agreements may be enforced if they comply with the Miglin framework under the Divorce Act and relevant provincial sup ‑ port legislation. This framework assesses fair ‑ ness both at the time of signing and at the time of separation. • For both property and spousal support agree ‑ ments, the harsher the terms and the longer the marriage, the greater the likelihood of court inter ‑ vention. • Foreign marriage agreements are not automati ‑ cally enforceable, but courts may accept them if they were fairly negotiated and do not conflict with Canadian family law principles. Several notable cases illustrate these principles: • In McCain v McCain , 2012 ONSC 7344, a marriage agreement was set aside and the wife was award ‑ ed spousal support of CAD175,000 per month because the Ontario spousal support waiver had been negotiated under duress and was uncon ‑ scionable. • In Anderson v Anderson , 2023 SCC 13, the Supreme Court of Canada upheld a “kitchen table” separation agreement regarding property division despite the absence of independent legal advice and financial disclosure, because the agreement
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