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

Date27 July 2022
AuthorJulien D. Payne,Marilyn A. Payne
 
Eect of Order or Agreement orOther
Arrangement That Benef‌itsChild;
Consent Orders
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).

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