CANADA Law and Practice Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
• the length of the marriage; • the parties’ respective incomes (actual or imputed); • the means, needs and circumstances of the parties – this basket consideration may include the capital base of either party, other financial obligations, and the budget of recipi - ent spouse. Duration of support is largely governed by the length of the marriage and the ages of the par - ties at the time of separation. Generally, a sup - port obligation will not be less in duration than the length of the relationship. Importantly, dura - tion for spousal support is determined by the length of the relationship, which can include cohabitation prior to the date of marriage if the parties are married. Cohabitation does not require physical resi - dence. There are cases in Canada where a party has established a sufficient level of economic integration and dependency during the course of a relationship for a support obligation to be imposed even though the parties did not physi - cally live together during the relationship. 2.5 Prenuptial and Postnuptial Agreements Domestic contracts can be entered into between married and unmarried spouses alike. In most provinces and territories, the validity and enforceability of domestic contracts are gov - erned by both statute and case law. Domestic contracts can take the following forms. • Cohabitation agreements – entered into between unmarried parties most commonly to restrict or modify spousal support entitle - ments and/or restrict equitable claims related to property. Cohabitation agreements can
become marriage contracts in the event of marriage if the parties contract as such. • Marriage contracts – entered into either dur - ing or in contemplation of marriage. Marriage contracts most commonly restrict or modify a married spouse’s right to the statutory frame - work for equalisation of property between spouses and/or restrict or modify spousal support entitlements. • Separation agreements – entered into between married and unmarried spouses to resolve the issues arising from the breakdown of their marriage or relationship. Generally, courts will enforce valid and enforce - able domestic contracts that do not give rise to Validity is governed primarily by statute in the relevant province. Validity is concerned primarily with the formal requirements of establishing the existence of the contract. In Ontario, for exam - ple, validity requires that the domestic contract be in writing, signed by both parties, witnessed, and dated. Enforceability of Domestic Contracts Enforceability, by contrast, concerns itself with whether the circumstances of entering into the contract were appropriate and with the fairness of the contract. The threshold requirements for the enforceability of all domestic contracts are threefold, as follows. Duress Duress is addressed extensively in the case law. Broadly understood, duress will be found when a spouse felt – at the time of execution or in the time leading up to the execution – that they had no choice but to enter into the contract and that the duress was impressed on them by the acts unconscionable circumstances. Validity of Domestic Contracts
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