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

AuthorJulien D. Payne; Marilyn A. Payne
Pages393-412

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 court 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 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 pos-
sibly 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 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 Haber v Nicolle, “the equi-
librium 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 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 agreement 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 ; vMEL 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 otherwise ensue
from the parent-child relationship. 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 Guidelines. An agreement purporting to cap periodic child sup-
port payments constitutes 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. Agreed payments into an investment trust fund 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. Child support is intended to meet the current needs of the child, and a parent’s
diversion of payments into an investment fund for the child’s future education does not
reduce the obligation to pay the appropriate amount of current support. Parents 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 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 Guidelines, 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 the 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 and 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 ; vJohannson 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).

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