In Ontario, you can sometimes claim spousal support even if you signed a waiver years ago. Under the Supreme Court’s Miglin Test, a judge may overturn an old domestic contract if it was signed under extreme duress, lacked financial disclosure, or if unforeseeable, catastrophic life changes make the waiver currently unconscionable.
When couples marry in Ontario, many sign a marriage contract (often called a prenup) to protect their individual assets. 💍 A common clause in these agreements is a complete waiver of spousal support, meaning neither party will pay the other a dime if the marriage ends. Signing this in your twenties when both partners are working full-time seems fair. But what happens 20 years later when one spouse gave up their career to raise children, or suffered a severe disability?
In Canada, domestic contracts are highly respected by the courts, but they are not entirely bulletproof. The Supreme Court of Canada established a strict legal framework known as the *Miglin Test* to determine when a judge can “set aside” (cancel) a spousal support waiver. Ontario judges must balance the importance of holding people to their contracts against the risk of leaving a vulnerable spouse destitute and reliant on social assistance.
Trying to break an ironclad marriage contract is complex and fiercely contested. ⚠️ You absolutely must browse our directory to find a highly experienced family law firm in Ontario. Attempting to overturn a legally binding waiver without professional representation is almost guaranteed to fail at the Superior Court of Justice.
Step-by-Step Process: Overturning a Waiver in Ontario
Whether your contract was signed in Mississauga, Windsor, or Toronto, challenging it requires a strategic legal attack. Here is how a family lawyer generally approaches the Miglin Test.
Step 1: Stage One of the Miglin Test (Execution)
Your lawyer will first look at *how* the agreement was signed. 🔍 Did your ex-partner hide millions of dollars in offshore accounts during the initial financial disclosure? Were you presented with the contract three days before your wedding under the threat of cancellation? If there were severe flaws in the negotiation process, or if you lacked independent legal advice, the judge may strike down the waiver immediately.
Step 2: Stage One (Substance of the Agreement)
Even if the signing process was fair, the judge will look at the original terms. Did the agreement fundamentally ignore the principles of the Divorce Act? If the contract was wildly oppressive the day it was signed—such as leaving a stay-at-home parent with absolutely nothing while the other spouse kept a multi-million dollar empire—it is vulnerable to being overturned.
Step 3: Stage Two of the Miglin Test (Current Circumstances)
If the contract survives Stage One, the court moves to Stage Two: looking at your life *today*. 📅 Have circumstances changed in a way that the couple could not have reasonably anticipated when they signed? If you simply lost your job, the waiver will likely hold. However, if you developed a catastrophic illness, or had a child with severe special needs requiring round-the-clock care, the court may rule that enforcing the old waiver is now unconscionable.
Step 4: Filing a Motion to Set Aside
To officially challenge the contract, your lawyer will file a formal Motion at the Superior Court of Justice. You will need to provide sworn Affidavits detailing the circumstances surrounding the original signing, as well as extensive medical and financial records proving your current level of hardship.
Step 5: Mandatory Mediation and Trial
Because family courts in Ontario are heavily backlogged, you will likely be required to attend mandatory mediation to see if a compromise can be reached. 💬 If your ex-partner refuses to offer any financial support, the case will proceed to a full trial where a judge will make the final, binding decision.
How Much Does it Cost in Ontario?
Litigating the validity of a domestic contract is one of the most resource-intensive battles in family law. As of May 2026, expect the following CAD costs:
- Family Lawyer Fees: Experienced litigators charge between $400 and $800 CAD per hour.
- Motion to Set Aside: Preparing the initial legal arguments and evidence generally costs $10,000 to $25,000 CAD.
- Full Trial Costs: If the dispute goes all the way to a trial, total legal fees can easily exceed $40,000 to $75,000 CAD depending on the duration of the litigation.
| Contract Factor | Strengthens the Waiver | Weakens the Waiver (Miglin) |
| Legal Representation | Both had independent lawyers | One spouse had no lawyer |
| Financial Disclosure | Full transparency with valuations | Hidden assets or undervalued businesses |
| Life Changes | Standard career changes / retirement | Unforeseen catastrophic disability |
How Long Does the Process Take?
Challenging a decades-old contract is a slow and demanding legal process.
- Gathering Old Evidence: Finding old emails, lawyer notes, and financial records from 20 years ago can take 2 to 5 months.
- Mediation: Reaching the mandatory mediation stage usually takes 6 to 9 months after filing the motion.
- Final Court Decision: A full trial to set aside a domestic contract in Ontario typically takes 1.5 to 3 years to conclude.
Frequently Asked Questions (FAQ)
Does infidelity void a spousal support waiver?
No. Family law in Canada is entirely “no-fault.” The fact that your ex-partner had an affair does not invalidate the legal contract you signed, nor does it increase your entitlement to spousal support.
What if I didn’t have my own lawyer when I signed it?
A lack of Independent Legal Advice (ILA) is a massive red flag for Ontario judges. While it does not automatically void the contract, it strongly supports your argument under Stage One of the Miglin Test that the agreement was signed without you understanding your legal rights.
Can I sign away child support in a prenup?
Absolutely not. In Ontario, child support is the legal right of the child, not the parent. Any clause in a domestic contract that attempts to waive or artificially limit child support is automatically void and entirely unenforceable by the courts.
Is a verbal agreement to waive support legally binding?
No. Under Ontario’s Family Law Act, a domestic contract (including a waiver of support) must be in writing, signed by both parties, and witnessed to be legally enforceable.
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