Effect of Order or Agreement or Other Arrangement that Benefits Child; Consent Orders

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 375-394

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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 fa r exceeds

the latitude of the court in interpreting a nd 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 resu lt. A court cannot

possibly address all potential scenarios that may befall the fam ily members and where fu-

ture events do occur that cause a materia l change of circumstances , the court is an awk-

ward forum for the resolution of those matters. e law recognizes that giv ing deference

to previously agreed-to provisions of child support encourages spouses to resolve their own

af‌fairs. As Dorgan J., of the Brish 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 altered.” However, subject to the statutory

qualif‌ications hereaf ter considered, child support is the right of the chi ld and the juris-

diction of the court to order interim or permanent chi ld support pursuant to the Divorce

Act cannot be ousted by the term s of a spousal or parental agreement or by minutes of

settlement. A n agreement purporting to cap periodic ch ild support payments constitutes

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

 Bradshaw v. Bradshaw,  BCSC ; see a lso D.B.S. v. S.R .G.; L.J.W. v. T.A.R.; Henr y v. Henry; Hiems-

tra v. Hiemst ra, []  S.C.R.  at para. .

  BCSC  at para. .

 Richardson v. Richardson, []  S.C.R. ,  R.F.L. (d) ; Willick v. Willick, []  S.C.R. , 

R.F.L. (th) ; C.N.G. v. S.M.R., [] B.C.J. No.  (S.C.); B.M .D. v. C.N.D.,  BCSC ; Brad-

shaw v. Bradshaw,  BCSC ; Picco v. Picco, [] N.J. No.  (U.F.C.); Miller v. Ufoegbune, []

O.J. No.  (S.C.J.); Kudoba v. Kudoba, [] O.J. No.  (S.C.J.); Kroupa v. Stoneham,  ONSC

 CHILD SU PPORT GUIDELINES IN CA NADA, 

no bar to an order for the payment of the applicable table amount under the Federal Child

Support Guidelines, w here there are no special provisions in t he agreement that directly or

indirectly benef‌it the chi ldren so as to render the table amount inequitable. 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 t he appropriate level of child support at any time.

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 as t here is evidence of a material chan ge of circumsta nces after the

settlement was reached. If part ies can simply f‌loat a trial ba lloon in the mediation process,

its value will be sig nif‌icantly dim inished and the more cumbersome and expen sive litiga-

tion process will resurf ace to the detriment of constructive attempts to resolve fam ily dis-

putes away from t he adversarial atmosphere of the courtroom. However, a parental waiver

of support is not binding on the child or the cour ts where inadequate provision has been

made for the child. e test of inadequacy must be measured against the federal or prov-

incial child support gu idelines and the provisions of sections .() to () and (.) to (.)

of the Divorce Act. Parents cannot trade of‌f child support against access.

; Charpentier v. Laselle, [] S.J. No.  (Q.B.); compare Quercia v. Francioni,  ONSC .

See, generally, Julien D. Pay ne, Payne on Divorce, th ed. (Scarborough, ON: C arswell, ) at –.

 Jeannotte v. Jeannotte, [] S.J. No.  (Q.B.).

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

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

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

 Ferguson v. Fergus on, [] A.J. No.  (Q.B.).

 Simons v. Simons, [] O.J. No. ,  R.F.L. (th)  (S.C.J.) (order for child support and spousal sup -

port granted pu rsuant to s. ()(a) of the Ontario Family Law Act.

 Varg a v. Var ga, [] A.J. No.  (Q.B.).

 Boss e v. Bosse (),  R.F.L. (th)  (N.B.Q.B.); W.(C.S.J.) v. W.(B.H.) (),  R.F.L. (th) 

(N.S .C.A.) ; G.(G.) v. H.(J.) (),  R.F.L. (th)  (N.W.T.S.C.); Seeley v. McKay, [] O.J. No. 

(Gen. Div.).

 Black v. Black (),  R.F.L. (th)  (B.C.C.A.); D. A.W. v. W.M. Z., [] O.J. No.  (S.C.J.).