In Ontario, family lawyers highly recommend reviewing your postnuptial agreement every 3 to 5 years. More importantly, it should be updated immediately following a major life event, such as having children, a massive shift in income, or selling a family business. Updating an existing contract typically costs between $1,500 and $4,000 CAD.
A postnuptial agreement is a domestic contract signed by a couple who are already legally married but wish to dictate how their finances will be handled in the event of a separation. Whether you live in Markham, Brampton, or Toronto, these contracts are excellent tools for managing financial stress, especially if one spouse recently started a high-risk business or received a large family inheritance.
However, many couples mistakenly adopt a “set it and forget it” mentality. ⚠️ An agreement signed in your late twenties when you both earned $60,000 CAD may be deemed completely unconscionable by an Ontario judge twenty years later if one of you gave up your career to raise four children. To ensure your postnuptial agreement remains legally enforceable under the Family Law Act, you must actively review and update it as your life evolves. Below is the step-by-step process of updating your contract and the critical milestones that should trigger a review.
Step-by-Step Process to Update a Postnuptial Agreement
Updating a contract is typically faster than drafting the original, but it still requires formal legal procedures. Skipping corners can invalidate both the update and the original agreement.
Step 1: Identify the Triggering Life Event
You do not need to update the agreement for minor promotions. However, you should contact your lawyer if you experience a major life event. Triggers include the birth or adoption of a child, one spouse leaving the workforce, the sale of a major corporate asset, or moving to Ontario from another province or country.
Step 2: Review the Original Document with a Lawyer
Book a consultation with your family lawyer to review the old agreement. They will cross-reference the old clauses with your current life situation and recent changes to Ontario case law. For example, laws surrounding spousal support and the treatment of the matrimonial home change periodically through precedent-setting court decisions.
Step 3: Exchange Updated Financial Disclosure
Even though you are updating an existing contract, you cannot skip financial disclosure. 📈 Both spouses must provide updated sworn financial statements. You must exchange recent bank balances, new property assessments, and up-to-date Canada Revenue Agency (CRA) tax returns so that the new terms are based on total financial transparency.
Step 4: Draft an Amending Agreement
If only a few clauses need changing, your lawyer will draft a formal “Amending Agreement.” This document specifically lists which paragraphs of the original contract are being deleted or replaced. If the changes are massive, it may be cleaner to draft a completely new, consolidated postnuptial agreement that explicitly revokes the old one.
Step 5: Obtain Independent Legal Advice (ILA)
Just like the original contract, your spouse must take the new Amending Agreement to their own independent lawyer. Their lawyer will review the updated terms, explain the new legal rights they are gaining or waiving, and sign a Certificate of ILA. Without this step, the update is highly vulnerable to being struck down by a judge.
Step 6: Sign and Store Securely
Both parties will sign the updated contract in front of witnesses. Ensure you keep the original wet-ink document in a safe place, such as a safety deposit box, and provide copies to your respective estate planning lawyers.
How Much Does It Cost in Ontario?
Updating an agreement is generally less expensive than starting from scratch, provided the negotiations remain amicable.
- Amending Agreement Drafting: If the changes are straightforward, the drafting lawyer will typically charge between $1,500 and $3,000 CAD.
- Independent Legal Advice (ILA): The spouse reviewing the updated contract will pay their lawyer approximately $800 to $1,500 CAD for their time and the ILA certificate.
- Full Rewrite: If the entire contract needs to be rewritten due to massive wealth changes, expect to pay the standard $3,500 to $7,500+ CAD.
Timelines for Updating the Contract
Do not wait until a separation is looming to rush an update. The process should be calm and cooperative. ⏱️
| Phase of Updating | Estimated Timeline |
|---|---|
| Gathering New Financials | 2 to 4 weeks depending on how organized your accounts are. |
| Drafting the Amendment | 1 to 2 weeks for your lawyer to prepare the document. |
| ILA and Final Signatures | 1 to 3 weeks to secure an appointment with the second lawyer. |
Frequently Asked Questions (FAQ)
What happens if my spouse refuses to update the agreement?
You cannot force your spouse to sign an updated contract. If they refuse, the original agreement remains legally binding. However, if the original agreement is now vastly unfair due to major life changes (like you giving up your career to raise kids), an Ontario court is much more likely to set aside the spousal support clauses during a separation.
Do we need to update it if we move to Ontario from another province?
Yes, it is highly recommended. Family law is governed provincially. A contract drafted under Alberta or Quebec laws may not seamlessly align with the unique property equalization rules in Ontario, especially regarding the strict protections applied to an Ontario matrimonial home.
Does updating the contract affect our Wills?
It very well might. Postnuptial agreements often dictate what happens to property if one spouse passes away. If you update the postnup to release claims on a certain asset, you should immediately send a copy to your estate lawyer to ensure your Last Will and Testament does not conflict with the new contract.
Can we write the update on a napkin and sign it?
No. Under the Family Law Act, any domestic contract (or amendment to one) must be in writing, signed by both parties, and formally witnessed. An informal note or a verbal agreement to ignore an old clause will not be upheld in an Ontario court.
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