In New Brunswick, you cannot use a prenuptial agreement (Marriage Contract) to predetermine parenting time or decision-making responsibility. The Court of King’s Bench will always make these decisions based on the “best interests of the child” at the exact time of separation.
When drafting a prenuptial agreement in New Brunswick, many couples want to outline every possible detail of their future, including what happens to their future children. It is entirely normal to want certainty to avoid bitter legal battles down the road. However, while Canadian family law heavily respects private financial contracts, it draws a hard line when it comes to the legal rights of children.
You cannot legally bind a child to a parenting plan that was created years before they were even born. The legal landscape in New Brunswick strictly mandates that a child’s needs must be assessed based on their current situation. In this guide, we will explore exactly how parenting matters are handled and what you actually can include in your Domestic Contract.
Step-by-Step Process for Handling Parenting Matters
Whether you live in Fredericton, Moncton, or Saint John, the rules surrounding children are universally applied across the province under the federal Divorce Act and the provincial Family Services Act. Here is how parenting arrangements are properly established if you separate.
Step 1: Focus on the Best Interests of the Child
Instead of relying on an old Marriage Contract, parents must negotiate a parenting plan at the time of their separation . The primary legal test used by the court is the “best interests of the child.” A judge will look at the child’s age, their relationship with each parent, and any history of family violence before approving a schedule.
Step 2: Determine Decision-Making Responsibility
Canadian family law no longer uses the outdated term “custody.” Instead, you and your ex-spouse must decide on decision-making responsibility. This refers to who has the legal authority to make major choices about the child’s health, education, and religion. Generally, most courts in New Brunswick encourage joint decision-making if both parents are capable and cooperative.
Step 3: Establish a Fair Parenting Time Schedule
You must also replace the old concept of “access” with parenting time. This dictates the actual physical schedule of where the child sleeps each night. You and your family lawyer will draft a highly detailed schedule that covers regular school weeks, summer holidays, and special family traditions. If you cannot agree, you will need to attend mediation or apply to the Court of King’s Bench for a judicial order.
What Can You Include in a Prenup?
While you cannot predetermine parenting arrangements, a Marriage Contract is still an incredibly powerful legal tool for other matters. Here is a clear breakdown of what is valid versus invalid:
| Contract Clause | Is it Legally Valid in New Brunswick? |
|---|---|
| Parenting Time Schedules | No. Any clause attempting to dictate where a child will live upon separation is automatically void and legally unenforceable. |
| Child Support Waivers | No. Child support is the legal right of the child. You cannot agree to waive or artificially lower child support payments in advance. |
| Spousal Support Terms | Yes. You can clearly outline limits or complete waivers regarding spousal support for your partner, provided the agreement is fair. |
| Division of Pre-Marriage Assets | Yes. Protecting your personal business, investments, and pre-marriage property is exactly what a Marriage Contract is designed to do. |
How Much Does a Marriage Contract Cost in New Brunswick?
Even if you cannot include parenting clauses, securing your finances is a wise investment:
- Drafting the Contract: A local family lawyer will generally charge between $1,500 CAD and $3,500 CAD to draft a robust agreement.
- Independent Legal Advice (ILA): Your spouse must hire their own lawyer to review the document, which typically costs $500 CAD to $1,500 CAD.
- Post-Separation Parenting Plans: If you separate and need to hire a mediator to create a parenting plan, expect to pay around $150 CAD to $300 CAD per hour.
How Long Does the Process Take?
Drafting a proper Marriage Contract before your wedding usually takes about 2 to 3 months of careful negotiation. If you eventually separate and need to negotiate a formal parenting plan for your children, it typically takes 3 to 6 months if both parents are willing to cooperate through mediation.
Frequently Asked Questions (FAQ)
What happens if we put child custody in our prenup anyway?
If you include clauses regarding decision-making responsibility or parenting time, a judge will simply strike those specific clauses from the document. The rest of the financial contract will generally remain valid, but the parenting sections will be legally ignored.
Can we agree on a specific school for the child in advance?
No. Decisions about a child’s education must be made based on what is best for the child at that specific point in their life. A pre-arranged agreement about private school attendance in a prenup is not legally binding on the court.
Can we set child support amounts in a prenup?
No. Child support is strictly governed by the Federal Child Support Guidelines. The amount is calculated using the paying parent’s actual income at the exact time of separation, not an arbitrary number chosen years in advance.
How do we protect our finances if we have children later?
Your Marriage Contract can include clauses stating how financial assets, like the family home or your business, will be divided regardless of whether you have children. However, it is highly recommended to update your contract with your lawyer after a child is born to ensure it remains fair.
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