Contractual covenants do not suffice to negate child support obligations that would otherwise ensue from the parent-child relationship.205Where a separation agreement purports to fix the amount of child support payable, a material change since the execution of the agreement is not required before a judicial review of child support can be undertaken in accordance with the Federal Child Support Guidelines.206Sections 15.1(5) to (8) and sections 17(6.2) to (6.5) of the Divorce Act confer limited powers on parents to deviate from their child support obligations as set out in the Federal Child Support Guidelines.207Given that these provisions are substantially similar, except insofar as section 15.1 relates to applications for an original child support order whereas section 17 relates to applications for the variation of an existing order, it will suffice for the purposes of this analysis if section 15.1 is reproduced. Section 15.1 reads as follows:
Child support order
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).
(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.
Terms and conditions
(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.
Court may take agreement, etc., into account
(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied
(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.
(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.
(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.
It is not clear whether the term "special provisions" in sections 15(1)(5)
(a) and 17(6.2)(a) of the Divorce Act means "particular" or "out of the ordinary or unusual."208It has been generally acknowledged, however, that "special provisions" must be of a nature that, in whole or in part, replace the need for ongoing child support.209Courts will be called upon to examine a wide variety of agreements to determine whether they contain "special provisions" within the meaning of sections 15.1(5) and 17(6.2) of the Divorce Act. Some agreements will have been prepared by legal counsel; others will not. Some will have been entered before, and others after, the Guidelines were implemented. Some will expressly purport to set out "special provisions"; others will not...