The issue in focus:
Application for an order setting aside terms of a separation agreement regarding child support and replacing them with an interim child support order.
DOM: April, 14, 1996
Date of Separation: January 1, 2019
Date of Agreement: November 1, 2019
Number of Children: Four
The agreement did not stipulate the parties incomes.
Wife sought order for prospective child support only.
The Wife sought to:
A. set the Separation Agreement aside on the basis of duress and being significantly unfair and inconsistent with law; or
B. the Agreement set aside under section 148 of the Family Law Act and replaced with an order in accordance with the Federal Child Support Guidelines (“Guidelines”).
Option A failed on the interim application, mainly given the nature of such application and the fact that the decision would be based on the weighing of competing affidavits— he said / she said. The Chambers judge found a trial would be necessary to determine the question on its merits.
With respect to Option B, the Chambers judge cited Day v. Day, 1998 CanLII 3379 (BC SC) for the proposition that courts are free to intervene and determine child support despite the valid agreement between the spouses.
The court confirmed that a party seeking to set aside and replace an agreement regarding child support does not have to do so to the standard established in Miglin v. Miglin, 2003 SCC 24, Hartshorne v. Hartshorne, 2004 SCC 22, and Rick v. Brandsema, 2009 SCC 10.
The Chambers judge referred to Kopp v. Kopp, 2012 BCCA 140 for the proposition that:
… A child’s right to support cannot be bargained away by a parent … The options available to parents to negotiate child support are limited, and while negotiated settlements in matrimonial matters are encouraged, courts have a separate responsibility to children to ensure their interests are upheld. Thus, the appropriate weight to be accorded to an agreement for child support will be less than that accorded to an agreement for spousal support.
The 2013 case of Kaler v. Kaler, 2013 BCCA 57 was also referenced for the position that child support cannot be bargained away and the courts have a separate responsibility to children to ensure their interests are upheld. Concerns of certainty and finality hold less weight in the context of child support.
The Chambers judge recognized section 148(3) of the FLA which permits the court to set aside and replace all or part of an agreement respecting child support “if the court would make a different order on consideration of the matters set out in section 150 [determining child support]” — according to the Guidelines. Based on the interpretation of section 148 of the FLA, the Chambers judge found that he was required to determine the appropriate amount of child support according to the Guidelines and then determine whether a different amount would be ordered after considering the child support provisions in the agreement along with any other direct or indirect benefits provided by the agreement as a whole.
The Chambers judge first calculated the Husband’s income according to section 3 of the Guidelines. However, the Husband argued that child support if determined according to the Guidelines, should be calculated according to section 9 of the Guidelines as he had the children for more that 40% of the time which entitles him to a set-off. The court discussed principles relevant to a section 9 set-off.
The Chambers judge found that the amount that the Husband pays in child support as per the separation agreement was not in accordance with the Guidelines. But as per the FLA, this does not make it unreasonable as the court may consider other provisions that benefit the children.
The Chambers judge found that the Wife was receiving all of the Canada Child Benefits but concluded that this would not reduce the child support payable by the Husband as the CCBs do not constitute income as per the Guidelines. The Agreement did not address special or extraordinary expenses directly and the Chambers judge found that since the Wife received all the CCB’s, this was a reasonable way to address that factor, but that it had no bearing on child support payable by the Husband. No case law was provided in support of the adequacy of this reasoning. Additionally, no evidence was discussed in the reasonings that spoke to the amount of special expenses incurred by either party.
Correctly stated, the Chambers judge found that the Canada Revenue Agency is not bound by the parties separation agreement and that the Wife would still have to provide evidence to the CRA to justify that she is primarily responsible for the children to receive the CCBs.
No additional evidence was found as a fact in the judgment to support the adequacy of child support paid by the Husband and thus, the Chambers judge found that the separation agreement was not adequate with regard to child support.
As such, under section 148(3) of the FLA, the Chambers judge set aside the child support provisions in the separation agreement and replaced it with an interim order of child support under section 149 of the FLA.