A separation agreement sets out each person’s rights with respect to important separation matters upon separation, such as child custody and child support. These matters can also be dealt with upfront, prior to separation, in cohabitation or pre-nuptial/marriage agreements. However, in certain circumstances, a court may disregard the provisions of these domestic contracts.

This article looks at the circumstances in which separation agreements may be disregarded by the courts. This article also covers a decision of the Court of Appeal for Ontario in which an order was made for parenting time that differed from the provisions of a prior separation agreement.

Separation agreements are legally binding contracts dealing with separation matters

A separation agreement is a legally binding contract between two parties who are separating and is negotiated and finalized following their separation. These agreements detail each person’s rights with respect to matters such as the division of property, child custody and support and spousal support.

Separation agreements are an important means through which you can protect your rights and assets after the breakdown of a relationship, and can prevent additional confusion or potentially prolonged legal battles. 

Making an agreement may reduce the need for court involvement. For example, where parents can’t agree on child custody and access arrangements, a court may be tasked with determining a suitable arrangement in the best interests of the children

Provisions of separation agreements can be disregarded by courts in certain circumstances

Section 56 of the Family Law Act sets out the circumstances in which courts may disregard or set aside provisions of domestic contracts – some of these circumstances are referred to here. “Domestic contracts” include separation, cohabitation and marriage agreements. 

When it comes to determining matters such as decision-making responsibility or parenting time, the court may disregard a provision of a domestic contract where, in the opinion of the court, to do so is in the best interests of the child. This is consistent with how the court makes decisions regarding decision-making responsibility (formerly referred to as custody) and parenting time (formerly referred to as access) – according to s. 24 of the Children’s Law Reform Act, the court is to only take into account the best interests of the child. 

In the determination of a matter respecting child support, the court may disregard any provision of a domestic contract where the provision is unreasonable having regard to the Child Support Guidelines as well as to any other provision relating to support of the child in the contract.

A court may set aside a domestic contract or provision in it, for example, if one party failed to disclose significant assets, debts or other liabilities, to the other, existing when the domestic contract was drafted.

Parties separate and enter into a comprehensive separation agreement

In Vale v Vale, the parties were married in 2004 and had three children before separating in 2016. The mother began divorce proceedings and sought decision-making responsibility and child support.

In 2018, the parties entered into a comprehensive separation agreement that included provisions providing for joint decision-making responsibility and a shared alternating week parenting schedule. The terms of the separation agreement were not incorporated into a final order in the divorce proceedings. The mother filed the agreement with the court for enforcement.

Mother seeks increased child support due to a change in the residence of one child

Differences later arose between the parties. Because of changes in the parties’ incomes, the mother submitted that she was entitled to a recalculation of the child support paid to her, which was based on an offset taking into account the alternating week schedule and the parties’ incomes.

In 2020, one of the children stopped staying with the father and began living full-time with the mother, a decision that was supported by the Office of the Children’s Lawyer. The mother sought increased support of $1,244 per month due to this change in residence, based on the Child Support Guidelines.

The father considered that, “taking a holistic approach to child support”, $1,000 was appropriate. Specifically, he observed that one of the children was now an adult and there were substantial s. 7 expenses for counselling.

Motion judge issues final order changing child’s principal residence and amount of child support

The motion judge stated that there would be “an interim without prejudice order” changing the principal residence of the child that moved in 2020 to be with the mother. His Honour also ordered ongoing child support of $1,244, in line with the Child Support Guidelines.

The parties sought clarification on whether the orders were temporary or final, and the motion judge indicated that they were final orders. The father appealed.

Court of Appeal upholds the substance of the orders, but changes the residence order to be “on an interim basis”

The Court of Appeal held that the motion judge did not err by varying the amount of child support. Given that the separation agreement said that the amount of child support would be adjusted to reflect any change in the residence of a child, the mother was not attempting to vary the provisions for child support contained in the agreement. She was simply attempting to enforce them.

The Court rejected the father’s argument that the motion judge did not have jurisdiction to vary parenting time for the child because the parties had signed a separation agreement. Under s. 56 of the Family Law Act, the court may disregard any provision of a domestic contract respecting parenting time where in the opinion of the court, to do so is in the best interests of the child. The Court said that:

“Here, it was obvious and agreed that [the child] was going to remain living with her mother, and the motion judge would not have erred in giving effect to that reality by making an order that she was to reside with her mother on an interim basis.”

However, the Court agreed with the father that this order should have been made on an interim basis, rather than a final order.

Contact NULaw in Toronto for Legal Advice on Separation Agreements

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. NULaw provides clients with trusted advice to help them proactively plan for their new future. Contact us online or call us at 416-481-5604 to book a consultation.

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