Variation of support in the face of a separation agreement
An Ontario court recently considered a spouse’s request to reduce the child support and spousal support obligations that had been set out in the parties’ separation agreement.
The parties began living together in June 1983, married in December 1985, separated in August 2009 and divorced in January 2012.
The parties had three children together: B, born in December 1992; S, born in March 1995; and R, born in September 1996. At the time of separation and throughout their childhood into adulthood, the children were homeschooled by the mother.
In December 2010, the parties entered into a separation agreement, which was drafted by accountants (not lawyers). The agreement provided that the parties agreed they had received independent legal advice, understood their respective rights and were executing the agreement voluntarily.
In December 2014, the father brought a motion to vary his child support and spousal support obligations.
The law on variation
The court began by outlining that, when a party is seeking to vary support and there is no previous court order (as was the case here), sections 15.1(4) and s. 15.2(4) of the Divorce Act direct the court to consider any agreement the parties made. That is, in such cases, the court must determine the extent to which the terms of an existing agreement should be incorporated into a formal order for support. The court must also assess the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Divorce Act (which include the objectives of finality, certainty and autonomy).
The court emphasized that a fairly negotiated agreement that represents the intentions and expectations of the parties, and that complies substantially with the objectives of the Divorce Act as a whole, should receive considerable weight.
The court’s decision
The mother argued that the father should pay child support for R until she turned 22, as R was born with a cleft palate.
The father testified that if the children continued to reside with their mother after they turned 18 years of age and were earning an income instead of going to school, he would have paid child support until B and S turned 20, and R turned 22. He argued, however, that given the circumstances, none of the children required child support. He pointed to the fact that the children had all worked or assisted with their mother’s venture over the years. Furthermore, B, who turned 20 in December 2012, lived alone in Toronto and worked as a manager of a café. Similarly, S, who turned 20 in March 2015, left the mother’s home in January 2015 and had taken on the role of business/financial advisor for his mother. Finally, R was teaching karate and selling some of her artwork, and her cleft palate had been surgically repaired long ago.
The court indicated that although the provisions for child support in the agreement were unusual, they were clear. Finding that the children were adults and were self-sufficient – which was a change in circumstances, as defined by the parties’ separation agreement – the court terminated the father’s child support obligation (noting that child support for R would end in April 2018).
The court stated that it had to balance the goal of preserving autonomy and certainty in its analysis regarding the father’s request to vary spousal support. It noted that the parties had agreed that the mother had been a stay-at-home mom and required spousal support at the time of separation, but that spousal support could be varied (or even terminated) if a court found a change in circumstances that would warrant such a variation.
The court concluded that the mother failed to provide adequate documentation to support her claim that she earned no income. The court indicated that since the time the separation agreement was entered into in December 2010, the mother had managed to reinvent herself as an entrepreneur. As a result, the court imputed an annual income of $160,000 to the mother since 2016.
Given that the mother was no longer a stay-at-home spouse and had nearly acquired the status of autonomy – which was again a change in circumstances, as defined by the parties’ separation agreement – the court fixed the father’s spousal support obligation in a declining fashion, so as to allow the mother to attain her full autonomy within the next five years.
When determining whether to vary a spouse’s support obligations, the court must consider the terms of a separation agreement and the extent to which it still reflects the original intention of the parties, as well as the objectives of the Divorce Act, including the principle that both parties require finality.