Effect of order or agreement or other arrangement that benefits child; consent orders

• Author: Julien D. Payne; Marilyn A. Payne
• Pages: 393-412

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CHAPTER 10

EFFECT OF ORDER OR AGREEMENT

OROTHER ARRANGEMENT THAT

BENEFITSCHILD; CONSENT ORDERS

A. ADVANTAGES AND LIMITATIONS OF PAENTAL SETTLEMENTS

Negotiated settlements are much better than cour t imposed orders for dealing with the

economic consequences of divorce. e parties themselves know best how to optimi ze and

apply their limited resources. e f‌lexibil ity available to them in negotiations far exceeds the

latitude of the court in interpreting a nd applying the legal principles and rules to t he facts

of the particula r case, especially w ith the advent of the Federal Child Support Guidelines.

Neither the parties nor the court can foresee all contingencies but, unlike the pa rties, the

court will not be involved in t he ongoing administration of the result. A cou rt cannot pos-

sibly address all potential scenarios that may befall the fam ily members and where future

events do occur that cause a material change of circumstances, the cour t is an awkward

forum for the res olution of those matters. e law recognize s that giving deference to previ-

ously agreed-to provisions of child support encourages spouses to resolve their own a f‌fairs.

As Dorgan J of the British Columbia Supreme Court stated in Habe r v Nicolle, “the equ i-

librium achieved by a fairly negotiated agreement is subject to upset when only one piece of

a complex puzzle is substantially a ltered.” However, subject to t he statutory qualif‌ic ations

hereafter considered, child support is the rig ht 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 ag reement or by minutes of settlement. Contractual

 Kaderly v K aderly, [] PEIJ No  (TD).

 Goulding v Keck,  ABCA ; HB v JB,  ABQB ; Brad shaw v Bradshaw,  BCSC ; see

also DBS v SRG; LJW v TAR ; Henry v Henry; Hiemstra v Hiem stra, []  SCR  at para ; Chutter v

Chutter,  BCSC .

  BCSC  at para .

 Richardson v Richard son, []  SC R ; Willick v Willick, []  SCR ; Wildeman v Wildeman,

 ABQB ; Reid v Reid ,  BCCA ; Aquilini v Aquilini,  BCSC ; v MEL v PRH, 

NBQB ; Picco v P icco, [] NJ No  (UFC); Kroupa v Stoneham,  ONSC ; Fran ke v Franke,

 SKQB ; compare Quercia v Franci oni,  ONSC . See also GG v JTG,  A BQB ;

MKR v JAR,  NBC A .

 CHILD SUPPORT GUIDELINES IN CANADA, 2020

covenants do not suf‌f‌ice to negate child support obligations that would otherwis e ensue

from the parent-chi ld relationsh ip. Where a separation agreement purports to f‌ix the

amount of child support payable, a material change since the execut ion of the ag reement is

not required before a judicial review of child support can b e undertaken in accordance with

the Federal Child Support Guideline s. An agreement purporting to cap periodic ch ild sup-

port payments constitutes no bar to an order for the payment of the applicable table amount

under the Federal Child Support Gui delines, where there are no special provisions in the

agreement that directly or indi rectly benef‌it the children so as to render the table amount

inequita ble. Agreed payments into an investment trust fu nd for a child’s future education

do not constitute “special provisions” under section (.) of the Divorce Act that entitle the

payor to divert his child support payments in excess of a speci f‌ied monthly amount into the

trust fund. C hild support is intended to meet the current needs of t he child, and a parent’s

diversion of payments into an investment fund for the child ’s future education does not

reduce the obligat ion to pay the appropriate a mount of cur rent support. Par ents can not

bargain away their child ren’s right to support. A proposed consent order that waives child

support entitlement is not justif‌ied by psychological benef‌its ensuing f rom the avoidance

of litigation. A chambers judge should not rubber stamp a proposed consent order without

addressing relevant factors pertai ning to child support. A consent order that provides that

the custodial pa rent’s application shal l be dismissed “as though there had been a trial on the

merits” is not a “child support order” within the meaning of t he Divorce Act and t he Federal

Child Support Guide lines, and any subsequent application for support should be brought

under section . of the Divorce Act, not by way of a variation proceeding under section 

of the Divorce Act. Consequently, there is no need to prove t hat a material change of circum-

stances has occurred si nce the consent order wa s granted.

Child support and access are not interdependent and parents cannot bar ter away these

rights without regard to the child ’s be st interests and cannot consensually oust the juri sdic-

tion of the courts to determine the appropriate level of child support at any ti me.

An interim child support order in accordance with t he Federal Child Support Guide-

lines is not precluded by a spousal agreement negotiated without legal advice. Incidental

matters relating to life insu rance and income tax refunds may also be addressed.

A retroactive increase in child a nd spousal support payable under a separation agree-

ment may be justif‌ied by the obligor’s failure to disclose a severance package from a former

employer.

 See Chartier v Ch artier, [] SC J No ; Richardson v Richards on, []  SCR ; D oe v Alberta, 

ABCA ; v Johannson v Ha aranen,  ABQB ; Kopp v Kopp,  BCCA ; Goundrey-Beskau v

Beskau,  BCSC ; Powell v Powell,  BCSC ; MEL v PR H,  NBQB ; CMM v DGC, 

ONSC  (application by child under Family Law Ac t, RSO , c F); Denis v Denis,  SKQB .

 Kopp v Kopp,  BCCA ; MEL v PR H,  NBQB  (consent order).

 Je annotte v Jeannotte, [] SJ No  (QB); see also Goundrey-Beskau v Beskau,  BCSC .

Compare DSS v NMG,  PESC .

 Cherne ski v Rathwell,  SKCA .

 Lam bright v Brown, [] BCJ No  (CA).

 DAW v WMZ, [] SCJ No  (SCJ), citing Richardson v Ri chardson, []  SCR , wherein it was

pointed out that chi ld support, like access, is t he right of the child.

 Ferguson v Fe rguson, [] AJ No  (QB).

 Simons v Simons, [] SCJ No  (SCJ) (order for child support and spousa l support granted pursua nt

to s ()(a) of the Ontario Family Law Act).