D. Ambit of Judicial Discretion

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 381-387

Page 381

Section 15.1(5) of the Divorce Act is inapplicable to an oral agreement, but sections 15.1(7) and (8) are not similarly circumscribed.³⁸Consensual arrangements for child support may be varied by an order granted pursuant to the Guidelines without proof of a material change of circumstances.³⁹The words "special provisions" within the meaning of section 15.1(5)(a) of the Divorce Act signify unique provisions, other than periodic payments for the support of a child. Spousal reapportionment of property,⁴⁰transfers of property in trust for the benefit of the children, or substantial lump sum amounts in satisfaction of debts or future child support obligations, might constitute examples of unique or special provisions.⁴¹Shared parenting arrangements that fall short of meeting section 9 of the Federal Child Support Guidelines do not constitute "special provisions" for the benefit of the children under section 15.1(5)(a) of the Divorce Act.⁴²

Page 382

There is no requirement that a separation agreement must be filed with the court so that it can be treated as a court order for the purpose of an application to vary its terms under section 17 of the Divorce Act and section 14 of the Federal Child Support Guidelines. An original application for child support may be brought pursuant to section 15.1 of the Divorce Act and upon such an application, it is unnecessary to prove any change of circumstances since the execution of the agreement before an order can be made in accordance with the Federal Child Support Guidelines.⁴³Section 15.1(5) of the Divorce Act confers a discretion on the court to order an amount different from the Guidelines, if special provisions of the agreement benefit a child and the Guidelines amount would be inequitable in light of the special provisions. The same criteria apply whether the benefits provided by the agreement are higher or lower than the Guidelines amount.⁴⁴The Guidelines are presumptively applicable and the onus of proof falls on the spouse who requests the court to deviate from the Guidelines pursuant to section 15.1(5) of the Divorce Act.⁴⁵A reduction in the obligor’s income that reflects an isolated event may not warrant a reduction in an agreed amount of child support pursuant to the application of the Guidelines, where the recipient spouse received less than an equal share of the matrimonial property in return for a higher amount of child support than would have been otherwise payable.⁴⁶The terms of a separation agreement should not be characterized as "special provisions" where the Guidelines are capable of achieving the same objectives as those sought to be achieved by the agreement. The Guidelines should be applied where they provide a better and fairer method of calculating support and they are in the best interests of the child.⁴⁷Where a court finds that special provisions of a separation agreement indirectly benefit the children so as to render immediate application of the Guidelines inequitable, section 15.1(4) of the Divorce Act may be invoked to enable the court to give deference to the separation agreement, while at the same time taking into account present and future changes by ordering that the applicable table amount of child support shall be payable at a designated future date. Given that the basic table amount of child support is readily ascertainable by reference to the obligor’s income, such an order does not constitute crystal ball gazing. ⁴⁸

A transfer of the non-custodial parent’s equity in the matrimonial home to the custodial parent coupled with a trade-off of higher spousal support against lower child support may constitute "special provisions" within the meaning of section 15.1(5) of the Divorce Act that render an order for the applicable table amount of child support inequitable. Given such circumstances, the court may decline to bring the child support provisions of the separation agreement in line with the normal Guidelines amount of child support but may conclude that the agreed amount of periodic support for the children shall be modestly increased to reflect the children’s current needs.⁴⁹

Page 383

An unequal division of assets or liabilities between the spouses does not in itself confer benefit on the child nor does it signify that the origin of any indirect benefit to the child was by a special provision that renders the application of the Guidelines inequitable within the meaning of section 15.1(5) of the Divorce Act.⁵⁰An unequal reapportionment of the matrimonial home under minutes of settlement does not constitute a "special provision" that warrants judicial deviation from the normal Guidelines amount of child support under section 15.1(5) of the Divorce Act, where such reapportionment is explicable by the wife’s sacrifice of her career development during a long marriage.⁵¹A separation agreement or court order that provides for long-term exclusive possession of the former matrimonial home by the custodial parent and the children of the marriage may not suffice to trigger the application of section 15.1(5) of the Divorce Act.⁵² Although such an agreement or order may provide stability for the children, section 15.1(5) of the Divorce Act is directed towards financial, not psychological, benefits.⁵³Conflicting evidence of the parties as to their unexpressed intent is unhelpful and the court should not speculate whether the obligor gave up some entitlement on the basis of some notion of pre-paying child support.⁵⁴Courts should refrain from speculating and making assumptions about an agreement in the absence of persuasive evidence that a division of assets created a direct or indirect benefit for the child that warrants deviation from the Guidelines.⁵⁵Where a purportedly final separation agreement includes no special provisions within the meaning of section 15.1(5) of the Divorce Act that replace the need for ongoing child support, the court should apply the Guidelines if their application provides a higher amount of child support than that provided by the agreement. An obligor’s claim that it would be unfair or inequitable to apply the Guidelines in light of the purportedly final agreement does not satisfy the requirements of section 15.1(5) of the Divorce Act where there are no special provisions in the agreement that benefit the child. The fact that the obligor has complied with the separation agreement does not signify that he or she is suffering an injustice simply because the legislation has determined that a person of his or her means should pay more, nor can the obligor complain that the basic amount of child support payable under the provincial and territorial tables in the Guidelines is based solely on the obligor’s income. The tables reflect the amount that a parent with a particular level of income is expected to contribute towards the costs of child rearing; in this way, the children share in increases or decreases in the other parent’s income just as they would if the family still lived together.⁵⁶Sections 15.1(5) and 17(6.2) of the Divorce Act are confined to situations where a financial benefit is conferred on children. While access to...