B. Relevant Statutory Provisions

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 377-379

Page 377

Far-reaching provisions concerning the effect of a spousal agreement are found in sections

15.1(5), 15.1(7) and 15.1(8) of the Divorce Act, S.C. 1997, c. 1, which provide as follows:

Court may take agreement into account

Page 378

15.1 (5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses,²³or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Consent orders

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

Reasonable arrangements

(8) For the purpose of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

Corresponding provisions to those in sections 15.1(5), (7) and (8) of the Divorce Act apply to variation orders for child support under sections 17(6.2), (6.4) and (6.5) of the Divorce Act.

In Gobeil v. Gobeil¸²⁴ the Manitoba Court of Appeal held that the trial judge had erred in upholding the child support provisions of the separation agreement on the basis of a Miglin²⁵ analysis instead of determining the applicable amount of child support under the Federal Child Support Guidelines, as required by section 15.1(3) of the Divorce Act. Only two exceptions are admitted to this requirement. Pursuant to section 15.1(5) of the Divorce Act, the court may deviate from the Guidelines amount of child support where a separation agreement includes "special provisions" that provide direct or indirect...