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

• Date: 27 July 2022
• Author: Julien D. Payne,Marilyn A. Payne

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 

Eect 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 eco-

nomic consequences of divorce. e parties themselves know best how to optimize and apply

their limited resources. e exibility 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 par-

ticular 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 possibly 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 resolution of

those matters.1 e law recognizes that giving deference to previously agreed-to provisions of

child support encourages spouses to resolve their own aairs.2 As Dorgan J of the British Col-

umbia Supreme Court stated in Haber v Nicolle,3 “the equilibrium achieved by a fairly nego-

tiated agreement is subject to upset when only one piece of a complex puzzle is substantially

altered.” However, subject to the statutory qualications hereafter considered, child support

is the right 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.4 Contractual covenants do not suce to negate child

 Kaderly v Kaderly, [] PEIJ No  (TD).

 Goulding v Keck,  ABCA ; HB v JB,  ABQB ; Bradshaw v Bradshaw,  BCSC ; see

also DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra, []  SCR  at para ; Chutter v

Chutter,  BCSC ; MGH v KLDH,  NBCA .

  BCSC  at para .

 Richardson v Richardson, []  SCR ; Willick v Willick, []  SCR ; Wildeman v Wildeman,

 ABQB ; Reid v Reid,  BCCA ; Aquilini v Aquilini,  BCSC ; Sidhu v Chima, 

BCSC ; Horbas v Horbas,  MBCA  at para ; MGH v KLDH,  NBCA ; Picco v P icco,

[] NJ No  (UFC); Kroupa v Stoneham,  ONSC ; Franke v Franke,  SKQB ; compare

Quercia v Francioni,  ONSC . See also GG v JTG,  ABQB ; MKR v JAR,  NBCA .

412      , 

support obligations that would otherwise ensue from the parent-child relationship.5 Where a

separation agreement purports to x the amount of child support payable, a material change,

since the execution of the agreement is not required before a judicial review of child support,

can be undertaken in accordance with the Federal Child Support Guidelines.6 An agreement

purporting to cap periodic child support payments constitutes no bar to an order for the pay-

ment of the applicable table amount under the Federal Child Support Guidelines, where there

are no special provisions in the agreement that directly or indirectly benet the children so as

to render the table amount inequitable.7 Agreed payments into an investment trust fund for

a child’s future education do not constitute “special provisions” under section 17(6.2) of the

Divorce Act that entitle the payor to divert his child support payments in excess of a specied

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.8

Parents cannot bargain away their children’s right to support. A proposed consent order that

waives child support entitlement is not justied by psychological benets 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 pro-

vides that the primary caregiving parent’s application shall be dismissed “as though there had

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

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

should be brought under section 15.1 of the Divorce Act, not by way of a variation proceeding

under section 17 of the Divorce Act. Consequently, there is no need to prove that a material

change of circumstances has occurred since the consent order was granted.9

Child support and the exercise of parenting time are not interdependent and parents

cannot barter away these rights without regard to the child’s best interests and cannot con-

sensually oust the jurisdiction of the courts to determine the appropriate level of child support

at any time.10

An interim child support order in accordance with the Federal Child Support Guidelines

is not precluded by a spousal agreement negotiated without legal advice. Incidental matters

relating to life insurance and income tax refunds may also be addressed.11

 See Chartier v Chartier, [] SCJ No ; Richardson v Richardson, []  SCR ; Doe v Alberta,

 ABCA ; Johannson v Haaranen,  ABQB ; Kopp v Kopp,  BCCA ; Goundrey-

Beskau v Be skau,  BCSC ; Powell v Powell,  BCSC ; MEL v PRH,  NBQB ; CMM

v DGC,  ONSC  (application by child under Family Law Act, RSO , c F); Skotnicki v Cayen,

 ONSC ; Kozak v Moore,  SKQB .

 Kopp v Kopp,  BCCA ; MEL v PRH,  NBQB  (consent order). See also Sidhu v Chima,

 BCSC  (application under BC Family Law Act).

 Jeannotte v Jeannotte, [] SJ No  (QB); see also Goundrey-Beskau v Beskau,  BCSC .

Compare DSS v NMG,  PESC .

 Cherneski v Rathwell,  SKCA .

 Lambright v Brown, [] BCJ No  (CA).

 DAW v WMZ, [] SCJ No  (SCJ), citing Richardson v Richardson, []  SCR , wherein it

was pointed out that child support, like the exercise of parenting time, is the right of the child.

 Ferguson v Ferguson, [] AJ No  (QB).