Child Support is the Right of a Child

We were recently involved in an arbitration which addressed the following question: "Can parents ever make final arrangements as to child support?" For example, can one spouse agree not to seek child support from the other or to accept less support that the law would provide?

I think that most people would be surprised by this question. They would respond: "Of course they can - only parents know what is best for their children and if they agree with each other what support, if any, should be paid, it's their business and no one else's".

The issue is not as simple as that. In fact, child support is the right of a child and not the right of either parent. Parents do not have the right to bargain with that support. This has been confirmed in a number of court decisions, the most notable one being that of the Supreme Court of Canada in Richardson v. Richardson.

Simply put, courts in Canada retain the right to interfere in "deals" made by parents where such deals do not provide for adequate child support. The measuring sticks are, firstly, the Child Support Guidelines (federal or provincial, as applicable). There are situations in which a parent can demonstrate that even where the terms of the deal are a departure from the Guidelines, the support is reasonable in the specific circumstances of the case.

Here is the issue: arrangements made between parents which do not consider, in advance, the courts' "big daddy" role when it comes to child support and the best interests of children may be vulnerable down the road so it's best to seek legal advice on this issue. Specific wording in a separation agreement, for example, can address this point to a great extent (and also deal with the expectations of the courts' when considering a request for a divorce...which is a subject we tackle in another post)......