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Separation Agreement Terms: Can the Court Disregard Them as it Relates to Children

3 minute read
Also authored by: Entisar Bukair

In Vale v. Vale, the Court of Appeal for Ontario considered the court’s inherent jurisdiction to disregard the terms of a separation agreement if found to be counter to the best interests of a child.

In Vale, the parties were married in 2004.  There were three children of the marriage, Z, E, and N.  The parties separated in 2016.

In 2018 the parties entered into a comprehensive separation agreement whereby they agreed to joint decision-making responsibility for the children, and to an alternate week shared parenting schedule.  The terms of this agreement were not incorporated into an order in the parties’ divorce proceeding.

In March 2020, E began living with the mother on a more permanent basis, which was supported by counsel for the child.  The mother requested an increase in child support payable by the father from $723.00 to $1,244.00 monthly, in accordance the parties’ incomes and the Child Support Guidelines.

The father contested E’s change of residence, as it was contrary to the terms of the separation agreement providing for shared parenting of all three children.  The father also disagreed with the increase in child support sought by the mother, seeking a more holistic approach to child support.

The father requested to pay $1,000.00 monthly instead of the Guidelines table sum of $1,244.00, considering the substantial counselling expenses for the children, and due to the fact that the parties’ eldest child, Z, was an adult child.

The motion judge disagreed with the father, ordering on a final basis that E reside primarily with the mother, and that time with the father be exercised in accordance with E’s wishes.

The motion judge ordered child support payable by the father to the mother in the sum of a $1,244.00 monthly, with arrears of support set at $3,678.00.

The father appealed. The appellate court upheld the child support order, and also considered the following:

Did the motion judge lack jurisdiction to vary parenting time?  The appellate court disagreed with the father that the motion judge lacked jurisdiction to vary parenting time for E because the parties had signed a separation agreement providing for shared parenting.

The court found that the motion judge had jurisdiction pursuant to section 56(1) of the Family Law Act to make an interim variation of parenting time because the interests of the child necessitated it. Section 56(1) of the Family Law Act states that the court may disregard any provision of a domestic contract where it is not in the best interests of the child.

The appellate court did find that the motion judge erred in making the order final. The motion judge indicated that E’s living arrangements would be made on an interim basis, but later made the order final without reasons.

The appellate court found that “Procedural fairness was denied to the parties, who had no reason to believe that the finality of the order should be addressed during the hearing.”  The court varied the motion judge’s order to add “on an interim basis”.

The Vale case confirms the court’s jurisdiction to disregard the terms of a separation agreement entered into by the parties where, in the opinion of the court, to do so is in the best interests of the child.

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