By Elena Giannattasio, International Family Lawyer (New York & San Francisco), Multi-Jurisdictional Divorce, PLLC
Canada recognizes and enforces prenuptial agreements, though the level of judicial oversight varies significantly across its provinces. Historically, marriage contracts were once viewed with skepticism in many common-law provinces, including Ontario. That changed with the Family Law Reform Act of 1978 (now incorporated into the Family Law Act), which expressly authorized spouses to enter into binding marriage contracts.
Requirements and Permissible Terms
A Canadian prenuptial agreement must be:
● In writing,
● Signed by both parties, and
● Witnessed.
These agreements may address broad financial and personal matters, including:
● Ownership and division of property,
● Spousal support obligations,
● Educational and “moral training” considerations for children.
However, Canadian law prohibits parties from overriding statutory protections relating to the matrimonial home, and no agreement can predetermine issues of custody or access.
Judicial Power to Modify or Set Aside Agreements
Even when properly executed, Canadian courts retain substantial authority to intervene. Ontario’s Family Law Act, for example, allows a court to disregard a support waiver or support provision if:
a. The term results in unconscionable circumstances,
b. A dependent spouse would otherwise require public assistance, or
c. There is non-payment of support at the time of the application.
More broadly, courts across Canada may alter or decline to enforce prenuptial terms, especially following an unforeseen financial hardship or life-changing event. The standard for judicial intervention varies province by province:
Examples of Provincial Approaches
- Ontario (Family Law Act, Sec. 56(4))
A court may set aside an agreement if:
● A spouse failed to disclose significant assets or debts,
● A spouse did not understand the nature or consequences of the agreement, or
● General contractual principles warrant intervention. - Nova Scotia (Matrimonial Property Act, Sec. 29)
A prenuptial agreement may be disregarded if it is unconscionable, unduly harsh, or fraudulent. - Saskatchewan (Family Property Act, Sec. 24(2))
The court may redistribute property if the interspousal agreement was unconscionable or grossly unfair when signed. - New Brunswick (Marital Property Act, Sec. 41)
Terms may be set aside if a spouse lacked independent legal advice and enforcement would be inequitable. - British Columbia (Family Relations Act, Sec. 65(1))
Even with a valid agreement, courts may re-divide property based on overall fairness. The Supreme Court of Canada has confirmed that British Columbia applies a lower threshold for judicial intervention compared to other provinces.
Cross-Border Implications
For international couples, Canada’s strong judicial oversight means that even a carefully drafted agreement may face scrutiny. Ensuring transparency, fairness, and full financial disclosure is essential for enforceability across Canadian jurisdictions.
Our Global Practice Perspective
At Multi-Jurisdictional Divorce, PLLC, international family lawyer Elena Giannattasio regularly prepares and reviews prenuptial agreements involving Canadian law. From New York and San Francisco, Elena coordinates with local counsel in each province to ensure agreements are crafted with the clarity, fairness, and enforceability demanded by Canadian courts,while protecting our clients’ long-term financial interests across borders.
Foreign Law Disclaimer, Multi-Jurisdictional Divorce, PLLC
This overview concerns foreign law. Elena Giannattasio, Esq. is not admitted to practice in Canada and does not advise on Canadian Law. All information is provided strictly for general educational purposes and is not legal advice.