A. Advantages and Limitations of Parental Settlements

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 375-377

Page 375

Negotiated settlements are much better than court imposed orders for dealing with the economic consequences of divorce. The parties themselves know best how to optimize and apply their limited resources. The flexibility available to them in negotiations far exceeds the latitude of the court in interpreting and applying the legal principles and rules to the facts of the particular case, especially with the advent of the Federal Child Support Guidelines. Neither the parties nor the court can foresee all contingencies but, unlike the parties, the court will not be involved in the ongoing administration of the result. A court cannot possibly address all potential scenarios that may befall the family members and where future events do occur that cause a material change of circumstances, the court is an awkward forum for the resolution of those matters.¹The law recognizes that giving deference to previously agreed-to provisions of child support encourages spouses to resolve their own affairs.²As Dorgan J., of the Brish Columbia Supreme Court, stated in Haber v. Nicolle,³ "the equilibrium achieved by a fairly negotiated agreement is subject to upset when only one piece of a complex puzzle is substantially altered." However, subject to the statutory qualifications hereafter considered, child support is the right of the child and the jurisdiction of the court to order interim or permanent child support pursuant to the Divorce Act cannot be ousted by the terms of a spousal or parental agreement or by minutes of settlement.⁴An agreement purporting to cap periodic child support payments constitutes

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no bar to an order for the payment of the applicable table amount under the Federal Child Support Guidelines, where there are no special provisions in the agreement that directly or indirectly benefit the children so as to render the table amount inequitable.⁵Parents cannot bargain away their children’s right to support. A proposed consent order that waives child support entitlement is not justified by psychological benefits ensuing from the avoidance of litigation. A chambers judge should not rubber stamp a proposed consent order without addressing relevant factors pertaining to child support. A consent order that provides that the custodial parent’s application shall be dismissed "as though there had been a trial on the merits" is not a "child support order" within the meaning of the Divorce Act and the Federal Child Support Guidelines and any subsequent application for support should be brought under section 15.1 of the Divorce Act, not by way of a variation proceeding under section 17 of the Divorce Act. Consequently, there is no need to prove that a material change of circumstances has occurred since the consent order was granted.⁶Child support and access are not interdependent and parents cannot barter away these rights without regard to the child’s best interests and cannot consensually oust the jurisdiction of the courts to determine the appropriate level of child support at any time.⁷An interim child support order in accordance with the Federal Child Support Guidelines is not precluded by a spousal agreement negotiated without legal advice. Incidental matters relating to life insurance and income tax refunds may also be addressed.⁸A retroactive increase in child and spousal support payable under a separation agreement may be justified by the obligor’s failure to disclose a severance package from a former employer.⁹The Court of Queen’s...