Following a separation there are many steps a couple may take on the road to divorce. One of the steps in the process can be the creation of a separation agreement, which is a legally binding contract the parties negotiate. A properly drafted separation agreement can address issues such as  division of property, division of assets and liabilities, child custodychild support, and spousal support. It’s important to make sure that all parties are ok with a separation agreement before signing it because as seen in a recent decision from the Ontario Superior Court of Justice, changing the terms of a separation agreement can be difficult to do.

Arriving at the separation agreement

The parties were married in 1989 and had three children before separating in 2000. They ultimately became divorced on January 31, 2003. Following the breakdown of the marriage the mother and father had a long history of disputes over child support. They eventually settled on a child support amount and signed an agreement on December 15, 2017. The agreement stated that the support terms in it “will not be subject to any variation for any reason whatsoever.” The mother stated that in order to solidify an agreement on child support amounts, she waived arrears and accepted a lower ongoing amount than she could have demanded.

A change in residence sparks motion to vary

The issue came about after the parties’ son moved from Ottawa (where he had been living with his mother) to British Columbia (where his father lived) to attend university. While the son had his own apartment, the father told the court that the son used the father’s home as a second home, where he would store personal items and spend extended periods of time.

The father stated that the son moved to British Columbia in July, 2018. He continued to pay $900 per month in child support for their son. The father said that in addition to support, he also gives the son $450-900 per month and buys him items such as groceries. The father states that it is not fair that he had to continue paying child support when the son no longer lives with the mother. In addition to this, he also asked that he no longer have to pay child support for their oldest daughter, who attends university and lives with neither parent.

The court’s analysis

The court first explained that Section 17(1) and 17(4) of the Divorce Act provide it with the authority to vary a support order provided the court is satisfied that a change of circumstances has occurred since the order was made. The court quoted the Supreme Court of Canada in stating, “Child support orders are not set in stone. There is always the possibility that an order may be varied when there is a change in the underlying circumstances that existed at the time the order was made. Parents are responsible for ensuring that their children receive the appropriate amount of support.”

While the agreement between the mother and father did state that support would not be subject to any variation “for any reason whatsoever,” the court stated that it has the authority to override such language.

However, in the case at hand, the court was not convinced that there was enough to warrant ordering a variation. The court wrote,

“The choice of the phrase “for any reason whatsoever” is evidence of the parties’ intentions and, in this case, evidence that before consenting to the order, the parties, both of whom were represented by counsel, considered or should have considered all of the reasons that might justify a future variation request by either of them. They agreed that there would be no such reasons-no reasons whatsoever-that would justify a variation.”

In short, the court found that the older daughter’s move to university could have been contemplated at that time the agreement was signed. Furthermore, the mother still contributed financially to the son, including flying him home on breaks from school. Like the eldest daughter, it was foreseeable that the son could move out of Ottawa to attend university.

Separating from your spouse can be stressful and emotionally draining. Having an experienced family lawyer on your side can help you navigate this uncertain time in your life, help you understand your legal rights, and ultimately protect your assets and interests. Proactively plan for your new future: contact the Toronto family lawyers at NULaw online or at 416-481-5604 to book a consultation.

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