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An Ontario court recently evaluated a situation in which an ex-husband argued that the child support provisions in a marriage contract should be struck. The court ultimately upheld the child support clauses and found that the ex-husband continued to be responsible for supporting the children for a number of reasons.

What Happened?

The parties had cohabited for four years, and had been married for three of those years. They had met online, with the ex-wife living in Halifax, Nova Scotia with two children from a previous marriage, and the ex-husband living in Colborne, Ontario.

The ex-husband was a shareholder in various corporations that grew, stored, processed, and distributed apples, and he owned apple orchards in Colborne. Once the relationship became serious, but before the couple was engaged, the ex-husband told the ex-wife that she and the children would need to move to Ontario so that he could continue to be involved in his apple businesses.

The ex-husband was wealthy, and had expensive hobbies, including big game hunting (he took major hunting trips annually to places all across the planet, costing on average between $10,000 and $15,000). He built the family a luxury custom-built home, drove expensive vehicles (including one that he purchased for the ex-wife), and the couple went on two luxury honeymoons.

The ex-wife’s biggest asset brought into the marriage was a pension plan from her Nova Scotia employer (Yellow Pages).

The couple was married in 2011, approximately one year after the ex-wife and children moved to Ontario, and about two years after they met.

The Marriage Contract

Several weeks before the wedding, the ex-husband told the ex-wife that his apple corporation required that they enter into a marriage contract in order to protect his business interests.

The parties each retained a lawyer and a marriage contract was executed in which all of the ex-husband’s business interests were excluded from net family property and provided little to the ex-wife in the event of a separation.

The contract did protect the ex-wife’s pension and, unusually, required the ex-husband to pay child support in the event of a separation (marriage contracts are generally silent on child support obligations).

The Child Support Provision

Paragraphs 10 and 11 of the marriage contract required the ex-husband (David) to pay child support to the ex-wife (Christine) for support of the two children (Tristyn and Cole).  These provisions read as follows:

  1. David acknowledges that Christine has two children of a previous marriage, namely Cole MacDonald, born November 15, 2001 and Tristyn Lauren MacDonald, born September 16, 2004.  Christine has custody of the children and they reside with her and David.
  2. David acknowledges that he stands in place of a parent (“in loco parentis”) to Christine’s children, Tristyn and Cole, and shall financially support them as though they are children of his family.  Upon separation, David shall pay Christine child support for the above named children at a minimum rate of $2,543.00 per month based on an income of $197,500.00 until such time as the children turn 18 years of age and/or until they are considered independent adults.

The Ex-Husband’s Position

The ex-husband argued that the child support provisions in the marriage agreement should be set aside.

He relied on s.33(4)(a) of the FLA, which allows the court to set aside a support provision if it results in unconscionable circumstances, in support of his position:

Setting aside domestic contract

(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

The ex-husband argued that because a relationship between himself and the two children no longer existed following the couple’s separation, it would therefore be unconscionable to uphold his child support obligation under the marriage contract.


The court noted that since the ex-wife’s claim for support was made and granted under the Divorce Act (federal),  the ex-husband’s attempt to invoke s.33(4)(a) of the Family Law Act (provincial) was invalid. If the court were to allow the ex-husband’s argument, it would effectively turn s.33(4)(a) into an override provision. As such, the court concluded that the ex-husband could not rely on that part of the statute.

The court further noted that if the above approach was incorrect, the court would still disallow the ex-husband’s attempt to rely on s.33(4)(a) since, based on the scope of the ex-husband’s relationship with the children, the child support provisions in the marriage contract did not result in unconscionable circumstances towards the ex-husband. The court emphasized that unconscionable is not simply unfair or unjust.

The court noted that if the provision for support was set aside, as the ex-husband wanted, the unconscionable effect would be on the children, not the ex-husband, especially since the ex-husband had bargained to preserve his business wealth in exchange for a promise to support the children. The court stated:

It would be a strange result, indeed, if David were allowed to retain all of the benefit of the agreement without having to abide by the bargain he made in consideration for that agreement.

The court went on to stress that all family law legislation (whether federal or provincial) should be interpreted in favour of children. While there is a great deal of caselaw dealing with unconscionability, most of those cases deal with spousal support and not child support. The court knew of no cases that would allow it to consider unconscionability when addressing only child support.

The court concluded that the child support provisions in the marriage contract would not be set aside on the basis of unconscionability.

In Loco Parentis

The court noted that it was important to ascertain the wishes and intentions of the parties in making a final decision about the child support provisions.

The court noted that neither party produced direct evidence as to their understanding of the meaning of the two clauses, including evidence of what they intended when they used the terms “in loco parentis” and “stands in the place of a parent.”

The court, therefore, decided to address the matter by evaluating the relationship between the ex-husband and the children rather than to treat the provisions simplistically and accept that child support must be paid because that was the bargain.

The ex-husband argued that while he stood in the place of a parent to the children prior to the parents’ separation, he no longer did so because he and the children have no relationship.

The ex-wife relied on a Supreme Court decision which had previously held that once a person is found to stand in the place of a parent, the relationship cannot be unilaterally withdrawn, and breakdown of the relationship following separation is not a relevant factor.

The court found that, on the facts, it was clear that the ex-husband had a part to play in the poor relationship that developed with the children after the separation, which he then tried to minimize. In addition, the court found that it was the ex-husband’s antipathy towards the ex-wife which prevented him from having an ongoing relationship with the children, also noting:

For David to be successful in his argument that he is estranged from the children and that none of the estrangement is his fault, he would have had to convince me on a balance of probabilities that he was and remains entirely innocent in causing the estrangement.

The court ultimately found that, in all of the circumstances of this case, the children were entitled to support because the ex-husband continued to stand in place of a parent to them within the meaning of the contract.

If you have questions about your rights and those of your children following separation or divorce, contact Gelman & Associates. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (416) 736-0200 or 1-844-736-0200, or contact us online for an initial consultation.

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