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

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 387-406

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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 fa r exceeds

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

facts of the particu lar case, especia lly with the advent of the Federal Child Support Guide-

lines. Neither the parties nor the cour t can foresee all contingencies but, unlike the parties,

the court will not be involved in the ongoing administration of the resu lt. A court cannot

possibly address all potential scena rios that may befall the family 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 mat ters. e law recognizes that g iving deference to pre-

viously agreed-to provisions of child support encourages spouses to resolve their ow n af-

fairs. As Dorgan J., of the British Columbia Supreme Court , stated in Haber v. Nicolle, “the

equilibrium achieved by a fai rly negotiated agreement is subject to upset when only one

piece of a complex puzzle is substantially a ltered.” However, subject to the st atutory qualif‌i-

cations hereafter considered, child support is the right of the child a nd the jurisdiction of

the court to order interim or permanent child support pursu ant to the Divorce Act cannot

be ousted by the terms of a spousal or pa rental agreement or by minutes of settlement.

 Kaderly v. Ka derly, [] P.E.I .J. No.  (T.D.).

 Goulding v. Keck,  ABCA ; Bradshaw v. Brad shaw,  BCSC ; see also D.B.S . v. S.R.G.; L.J.W.

v. T.A.R.; Henry v. Henry; Hie mstra v. Hiemstra, []  S.C.R.  at para. ; Ch utter v. Chutter, 

BC SC  .

  BCSC  at para. .

 Richardson v. Richardson, []  S.C.R. ; Willick v. Willick, []  S.C.R. ; Wildeman v. Wilde-

man,  ABQB ; Reid v. Reid,  BCCA ; N .C. v. E.S.,  NBQB ; Picco v. Picc o, [] N.J.

No.  (U.F.C.); Kroupa v. Stoneham,  ONSC ; Franke v. Franke,  SKQB ; compare Quer-

cia v. Francioni,  ONSC . See a lso G.G. v. J.T.G.,  ABQB ; M.K.R. v. J.A.R.,  NBCA .

 CHILD SUPPORT GUIDELINES IN CANADA, 2017

Contractual covenants do not suf‌f‌ice to negate child support obligations t hat would other-

wise ensue from the parent-child relationship. Where a separation agreement purports to

f‌ix the amount of child support payable, a material cha nge since the execution of the agree-

ment is not required before a judicial review of child support can be undertaken in accord-

ance with the Federal Child Support Guideline s. An agreement purporting to cap periodic

child support payments constitutes no bar to a n order for the payment of the applicable

table amount under the Federal Child Support Guidelines, where there are no specia l pro-

visions in the agreement that direc tly or indirectly benef‌it the ch ildren so as to render the

table amount i nequitable. Agreed payments into a n investment trust fund for a chi ld’s fu-

ture education do not constitute “special provisions” under section (.) of t he Divorce Act

that entitle the payor to divert his child support payments in excess of a specif‌ied monthly

amount into the trust f und. Child support is intended to meet the cu rrent 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 ch ildren’s right to support. A proposed consent order

that waives child support entitlement is not justif‌ied by ps ychological benef‌its ensuing from

the avoidance of litigation. A chambers judge should not rubber stamp a proposed consent

order without addressing relevant factors pertain ing to child support. A consent order that

provides that the custodial pa rent’s application shall be dismissed “as though there had

been a trial on the merits” is not a “child support order” within t he meaning of the Divorce

Act and the Federal Chil d Support Guidelines, and any subsequent application for support

should be brought under section . of the Divorce Act, not by way of a variation proceed-

ing under section  of the Divorce Act. Consequently, there is no need to prove that a ma-

terial change of circum stances has occurred since the consent order was 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 Char tier v. Chartier, [] S.C.J. No. ; Richardson v. Richardson , []  S.C. R. ; Doe v. Alberta,

 ABCA ; Domzalska v. Desjardins,  ABQB ; Kopp v. Kopp,  BCCA ; Goundrey-Bes-

kau v. Beskau,  BCSC ; C. M.M. v. D.G.C.,  ONSC  (application by ch ild under Family Law

Act, R.S.O. , c. F.); Denis v. Denis,  SKQB .

 Kopp v. Kopp,  BCCA .

 Jeannotte v. Jeannotte, [] S.J. No.  (Q.B.); see al so Goundrey-Beskau v. Beskau,  BCSC .

Compare D.S. S. v. N.M.G.,  PESC .

 Cherneski v. Rathwell,  SKCA .

 Lambright v. Brown, [] B.C.J. No.  (C.A .).

 D. A.W. v. W.M. Z., [] O.J. No.  (S.C.J.), citing Richardson v. Rich ardson, []  S.C.R. ,

wherein it was pointe d out that child support, li ke access, is the right of the chi ld.

 Ferguson v. Fer guson, [] A.J. No.  (Q.B.).

 Simons v. Simons, [] O.J. No.  (S.C .J.) (orde r for child support and spousa l support granted pursu-

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