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

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 391-410

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 

EFFECT OF ORDER OR AGREEMENT

OR OTHER ARRANGEMENT THAT

BENEFITS CHILD; CONSENT ORDERS

A. ADVANTAGES AND LIMITATIONS OF PARENTAL

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 and applying the legal principles and rules to t he

facts of the particu lar case, especially 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 result. 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 tho se matters. e law recognizes that giving deference to pre-

viously agreed-to provisions of child support encourages spouses to resolve their own 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 statutory qualif‌ica-

tions hereafter considered, child support is the right of the chi ld and the jurisdiction of the

court to order interim or permanent child support pursua nt to the Divorce Act cannot be

ousted by the terms of a spousal or parenta l agreement or by minutes of settlement. Con-

tractual covenants do not suf‌f‌ice to negate child support obl igations that would otherwise

 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. .

  BCSC  at para. .

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

man,  ABQB ; Brad shaw v. Bradshaw,  BCSC ; N.C. v. E.S .,  NBQB ; Picco v. Picco,

[] N.J. No.  (U.F.C.); Kroupa v. Stoneham,  ONSC ; Franke v. Franke,  SKQB ;

compare Quercia v. Francioni,  ON SC . See also G.G. v. J.T.G.,  ABQB .

 CHILD SU PPORT GUIDELINES IN CA NADA, 

ensue from the parent-child relationship. Where a separation agreement purports to f‌ix t he

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

not required before a judicial review of child support ca n be undertaken in accordance with

the Federal Child Support Guidelines. An agreement purpor ting 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 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 the 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 current support. Parents cannot

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 shall be dismissed “as though there had been a tri al on

the merits” is not a “child support order” within the meani ng of the Divorce Act and the

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 that a material change

of circumstances ha s 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 best 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.

e Court of Queen’s Bench of Alberta has held that it should not lightly dist urb a

mediated comprehensive settlement achieved through the alternative judicia l resolution

facilities except insofar a s there is evidence of a material change of circumstances aft er the

 See Chartier v. Char tier, [] S.C.J. No. ; Richardso n v. Richardson, []  S.C.R. ; Doe v. Alberta,

 ABCA ; Moors v. Moors,   ABQB ; Kopp v. Kopp,  BCCA ; See v. See, [] O.J. No.

 (Gen. Div.); Denis v. Denis,  SKQB .

 Kopp v. Kopp,  BCCA .

 Jeannotte v. Jeannotte, [] S.J. No.  (Q.B.). 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.) (order for child support a nd spousal support grant ed pursu-

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