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Challenging a Domestic Contract – Are its Terms Still Valid Pending Trial?

Written by Russell Alexander / (905) 655-6335

Challenging a Domestic Contract – Are its Terms Still Valid Pending Trial?

As readers of my blog will know, “domestic contracts” (which include separation agreements and marriage contracts) are essentially signed, written legal contracts that embody the negotiated agreement between spouses in the event of their separation or divorce.  Among other things, they typically include provisions relating to how much post-split spousal support is to be paid, and by whom.

A well-drafted domestic contract will withstand a court’s scrutiny, and its terms may even be incorporated into an eventual divorce order made by the court.  But not all domestic contracts pass this test – one or both spouses may decide to challenge the validity of the agreement they negotiated and may go to court for a temporary ruling on whether its provisions should be enforced pending a fuller trial when all their issues relating to the separation or divorce can be finally addressed.

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These kinds of contract-challenge scenarios give rise to two interesting legal questions:

Question 1:  Do the support-related provisions of a domestic contract remain effective pending a court’s later determination of whether they are legally valid?

Yes.  In a case called Balsmeier v. Balsmeier, the court stated that there is a legal presumption that the marriage contract executed between a couple is valid.  So if one of them asks the court to set it aside, and requests interim support until the rest of their issues can be determined later at trial, then the court should normally order that support in keeping with what the parties agreed to in the contract.  In other words, the court should be reluctant to order interim relief that contradicts what the parties themselves agreed to in the signed contract.

Question 2:  Can a couple add a provision to a domestic contract that effectively ousts a court’s authority to change or set aside other provisions that relate to support?

No. If a domestic contract includes a provision for support or a waiver of a right to support, then the court can freely set it aside and make its own support determination – even though the contract itself contains an express provision trying to preclude the court’s power to do so under the Family Law Act (FLA). There are three situations in which a court can do this:

  • Where the provision for support, or the waiver of the support right, results in unconscionable circumstances,
  • The support provision is in favour of a dependent who qualifies for an allowance for support out of public money, or the waiver is by or on behalf of this kind of dependant, or
  • There is default in the payment of support under the contract at the time the application is made.

In an upcoming blog, we will take a look at how this power can be wielded by a court, and applied practically in the face of rather onerous domestic provisions that are being challenged at an interim stage pending trial.

For the full text of the decision, see:

Balsmeier v. Balsmeier, 2014 ONSC 5305(CanLII)


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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.