Facts[]
The child was eleven years old and lived with the mother in British Columbia. At the time of the child's birth, the parents both lived in Nova Scotia and agreed that the father would pay $15,000 in child support pursuant to the Family Maintenance Act (now the Maintenance and Custody Act). The father earned $40,000/year at the time. The order was made as a procedural step and did not involve the court's scrutiny of the adequacy of the arrangement. The child had been diagnosed with attention deficit hyperactivity disorder and required expensive treatment and an unusual amount of supervision. The mother earned $52,000/year at the time of the hearing. The British Columbia court made a provisional order requiring the father to pay $343/month based on an income of $40,000 and an additional $550/month in special expenses. In refusing to confirm the provisional order, the Nova Scotia judge found that the application of the Guidelines would be inequitable because other provisions in the form of a lump sum order had already been made for the child. He found the mother's evidence lacking in credibility. He remitted the matter to British Columbia to obtain further evidence respecting special expenses. The father earned $69,612/year at the time of the hearing. If the court allowed the appeal, he sought to have a finding of undue hardship made.
Issue[]
- Should the support arrangement between the parties be upheld?
Decision[]
Appeal allowed.
Reasons[]
Bateman, writing for the court, held that while the father may have hoped that his payment of the lump sum ended his exposure to further claims, the fact is that the law holds that a child has a right to parental support which cannot be bargained away. Special provisions such as a lump sum can always be assessed by the courts for reasonableness. Generally, an agreement of this type will be compared against the Guidelines amount to determine if the provision is reasonable. In this case, the lump sum amounted to only two years of support at the table amount and was clearly unreasonable.
However, it is clear that the court has the ability to uphold maintenance that differs from the Guidelines amount if the order or agreement contains a special provision which directly or indirectly benefits the child and that the application of the Guidelines would result in an amount of child support that is inequitable. The circumstances of the parents are only taken into account insofar as they are relevant to the ability of the parent to contribute to the support of the child.
Ratio[]
- Courts can create, or order enforcement, of special provisions under s. 10(3) of the Maintenance and Custody Act.
- Child support contracts do not bind the courts.
- Courts will vary special provision if inequitable under s. 10(2).