Effect of order or agreement or other arrangement that benefits child; consent orders
Author | Julien D. Payne/Marilyn A. Payne |
Pages | 344-361 |
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 court imposed orders for dealing with the
economic conseq uences of divorce. e parties them selves know best how to optimi ze and
apply their lim ited resources . e flexibilit y available to them in negotiations far e xceeds
the latitude of t he court in interpreting a nd applying the le gal principles a nd rules to t he
facts of theparticular case, especially with the adventof the Federal Child Support Guide -
lines. Neither the parties nor the court can foresee all contingencies but, unlike the par-
ties, the court will not be involved in the ongoing administration of the result. A court
cannot possibly add ress all potent ial scenar ios that may befal l the fami ly members and
wherefutureeventsdooccurthatcauseamaterialchangeofcircumstances,thecourtis
an awkward forum for the resolution of those matters.However, subject to the statutory
qualific ations hereaft er considered, child supp ort is the rig ht of the child and t he jurisdic-
tion of the court to order interim or perm anent child suppor t pursuant to t he Divorce Act
cannot be ousted by the terms of a spousal or parental agreement or by mi nutes of settle-
ment.An agreement purporting to cap periodic child support payments constitutes no
bartoanorderforthepaymentoftheapplicabletableamountundertheFederal Child
Support Guidelines,wheretherearenospecialprovisionsintheagreementthatdirectlyor
indirect ly benefit the children so as t o render the table amount inequitable. Parents cannot
bargain away t heir children’s right to s upport. A proposed con sent order that waive s child
support entitlement i s not justified by ps ychological benefit s ensuing f rom the avoidance
of litigation. A ch ambers judge should not rubber stamp a proposed consent order wit hout
Kaderly v. Kaderly,[]P.E.I.J.No.(T.D.).
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.); 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.); Char-
pentier v. Laselle,[]S.J.No.(Q.B.).See,generally,JulienD.Payne,Payne on Divorce,thed.
(Scarborough, ON: Carswell, ) at –.
Jeannotte v. Jeannotte,[]S.J.No.(Q.B.).
Effect of Ord er or Agreement or Other Ar rangement that Benefits C hild; Consent Orders
addressing relev ant factors pertain ing to child support. A consent order t hat provides that
the custodial parent’s application shall be dismissed “as though there had been a trial on
the merits” is not a “chi ld support order” wit hin the mea ning of the Divorce Act and the
Federal Child Support Guidelines a nd any subsequent applic ation for support should b e
brought under sec tion . of the Divorce Act,notbywayofavariationproceedingunder
section of the Divorce Act. Con sequently, there is no need to prove that a materia l change
ofcircumstanceshasoccurredsincetheconsentorderwasgranted.
Child support and access are notinterdependentand parents cannotbarter away these
rightswithout regardto the child’sbest interestsand cannot consensually oust thejurisdic-
tion of the cour ts to determine the appropriate level of ch ild support at any time.
An interim c hild support order i n accordance wit h the Federal Child Support Guide -
lines is not precluded by a spousal agreement negoti ated without legal adv ice. Incidental
matters relating to life insurance and income tax refunds may also be addressed.
A retroactive i ncrease in ch ild and spous al support payable u nder a separation ag ree-
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 Alber ta has held that it shou ld not lightly disturb a
mediated comprehensi ve settlement achie ved through t he alternati ve judicial res olution
facilities except insofar as there is evidence of a material change of circumstances after the
settlement was reached. If parties can simply float a trial balloon in the mediation process,
its value wil l be significa ntly dimin ished and the more cumb ersome and expensive litiga-
tion process wi ll resur face to the detri ment of constructive attempts to re solve fami ly dis-
putes away from the adversa rial atmosphere of the court room.However, a parental wai ver
ofsupportisnotbindingonthechildorthecourtswhereinadequateprovisionhasbeen
made for the child.e test of inadequacy must be measured against t hefederal or provin-
cial chi ld support guideli nes and the provisions of sections .() to () and (.)to (.) of
the Divorce Act. Parents cannot trade off child support against access.
An application to v ary chi ld support is not preclude d by the terms of a sepa ration
agreement which provide s that no such application shall be brought for a spe cified number
of years.
Spouses or former spouses may agree that the amount of child support shall exceed
that availableunder the Federal Child Support Guidelines, but t he amount and duration of
agreed child support payments remain governed by the Divorce Act and the Federal Child
Lambright v. Brown,[]B.C.J.No. (C.A.).
D. A.W. v. W.M. Z., [] O.J. No. (S.C .J.),citi ng Richardson v. Richardson,[] S.C.R. ,
wherein it was pointed outthat child support, like access, is the right of the child.
Ferg uson v. Ferguson, [] A.J. No. (Q.B.).
Simon s v. Simons,[]O.J.No. ,R.F.L.(th)(S.C.J.)(orderforchildsupportandspousalsup-
portgrantedpursuanttos.()(a)oftheOntarioFamily Law Act.
Va rga v. Varga ,[]A.J.No.(Q.B.).
Bosse 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.).
King v. King,[]N.J.No. (S.C.).
Wilson v. Daffern, []B.C .J. No. (S.C.); Dicks v. Dicks, [] O.J. No. (S.C.J.).
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