In Ontario, you can include a spousal support waiver in your marriage contract, but it is never 100% guaranteed to last forever. Family courts use the strict “Miglin test” to evaluate these waivers. If enforcing the waiver decades later would leave a spouse in severe poverty, a judge at the Superior Court of Justice can legally override the contract and order support anyway.
When drafting a marriage contract (prenup) in cities like Toronto, Ottawa, or Mississauga, protecting your hard-earned income is usually a top priority. Many couples want to completely opt out of the province’s default spousal support rules. They ask their lawyers to draft a strict clause stating that neither spouse will ever pay the other a single dime of support if the relationship ends. 📝
However, while Ontario’s Family Law Act makes it very easy to protect physical property like a business or a house, the courts are incredibly protective of a person’s living standards. You cannot simply write “no spousal support ever” and assume your income is perfectly safe forever.
This guide will explain the legal hurdles of the famous Miglin test, how judges determine if a waiver is “unconscionable,” and the exact steps you must take to make your waiver as legally bulletproof as possible. We will also discuss why hiring two separate local law firms is your best defence against a future court challenge.
Step-by-Step Process in Ontario
Whether you are a high-income professional in London or a business owner in Hamilton, attempting to waive spousal support requires a flawless legal strategy. If you make a procedural mistake today, your ex-partner will easily tear up the contract during a divorce. 📍
To ensure your waiver survives a rigorous review by an Ontario judge, you must meticulously follow these foundational legal steps before your wedding day.
Step 1: Understand the Miglin Test
If your ex-spouse challenges the waiver during a divorce, the judge will apply a two-part legal analysis known as the “Miglin test” (named after a famous Supreme Court of Canada case). First, the judge will look at the circumstances when you signed the contract. ❗
The judge will check for any signs of coercion or extreme vulnerability. If you handed your partner the contract three days before the wedding, the judge will likely rule that they signed under duress, rendering the spousal support waiver completely void from the start.
Step 2: Provide Flawless Financial Disclosure
You absolutely cannot legally waive spousal support if your partner does not know how much money you actually make. Both spouses must exchange full, sworn financial disclosure.
You must provide your recent Canada Revenue Agency (CRA) tax returns, pay stubs, and corporate financial statements. Your partner must fully understand the exact standard of living they are willingly giving up by signing the waiver.
Step 3: Secure Independent Legal Advice (ILA)
An Ontario family court will almost always strike down a spousal support waiver if the vulnerable spouse did not have their own lawyer.
Your partner must take the drafted contract to an independent family law firm. Their lawyer will explicitly explain how waiving spousal support could harm them if they decide to quit their job to raise children later. The lawyer must then sign a Certificate of ILA and attach it to the contract.
Step 4: Draft a Severability Clause
Even if you follow every rule perfectly, life changes. Under Section 33(4) of the Family Law Act, a judge can set aside a support waiver if enforcing it decades later would result in “unconscionable circumstances” (for example, if one spouse becomes severely disabled and would end up on social assistance). 💪
To protect the rest of your agreement, your lawyer must include a “severability clause.” This ensures that if the judge decides to strike a line through the spousal support waiver and order monthly payments anyway, the rest of your contract protecting your house and business remains perfectly valid.
How Much Does it Cost in Ontario?
Drafting a marriage contract with a rigid spousal support waiver requires highly technical legal language. Attempting to save money with a generic online template is virtually guaranteed to fail the Miglin test in court. 💰
Here is a breakdown of the typical costs you might face when drafting and defending a spousal support waiver:
| Service / Legal Consequence | Estimated Cost (CAD) | Who Pays? |
|---|---|---|
| Lawyer (Drafting the Waiver) | $2,500 – $6,000+ Flat/Hourly | The requesting spouse |
| Independent Legal Advice (ILA) | $1,000 – $2,500+ Flat Fee | The responding spouse |
| Contested Trial Over the Waiver | $30,000 – $75,000+ | Both spouses pay their own |
| Court-Ordered Spousal Support | Hundreds to Thousands / month | The higher-earning spouse |
If you force an unfair waiver on your partner and later try to defend it in a frivolous family court trial, the judge may hit you with a massive “cost award,” forcing you to reimburse your ex-partner’s expensive legal bills.
How Long Does the Process Take?
Because the Miglin test heavily scrutinizes whether a spouse had enough time to carefully consider the contract, rushing this process is a fatal legal error. Gathering three years of tax returns and pay stubs typically takes 3 to 6 weeks. ⏱
The negotiation phase between the two law firms, specifically regarding the fairness of the spousal support waiver, often takes another 1 to 2 months.
To ensure the waiver is viewed favourably by a judge, family lawyers strongly advise that the final document be signed, witnessed, and sealed at least 3 to 6 months before the wedding day. If you spring the contract on your partner in the final weeks before the ceremony, the waiver is practically worthless.
Frequently Asked Questions (FAQ)
Can we waive child support in the contract too?
Absolutely not. Under Canadian law, child support is the absolute right of the child, not the parent. You cannot legally contract out of child support or predict future child support obligations in a marriage contract. Any clause attempting to do so will be instantly voided by an Ontario judge.
Does having a baby automatically cancel the spousal support waiver?
It does not cancel it automatically, but it creates a massive vulnerability. If your partner quits their lucrative career to stay home and raise your children, enforcing a strict waiver of spousal support years later might be viewed as “unconscionable” by the court, prompting a judge to override the contract.
What makes a waiver “unconscionable”?
Unconscionable means shockingly unfair or oppressive. If enforcing the waiver would leave a spouse relying on government social assistance or living in extreme poverty while the other spouse enjoys a multi-million dollar lifestyle, an Ontario family court will generally refuse to uphold the waiver under Section 33(4) of the Family Law Act.
Should we update our contract every few years?
Yes, reviewing the contract is highly recommended. If your financial situation changes drastically over 10 or 20 years, a spousal support waiver that was fair at age 25 might be terribly unfair at age 45. You can draft an “Amending Agreement” with your lawyers to update the support terms and keep the contract legally secure.
Do I need a law firm to write a spousal support waiver?
Yes. Spousal support waivers are the most frequently overturned clauses in family law. Attempting to draft one yourself without proper legal phrasing, complete financial disclosure, and Independent Legal Advice ensures the waiver will fail the Miglin test in a contested divorce.
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