When parents separate, if the children live largely with one parent, then typically the non-custodial parent must pay the custodial parent child support. The objective is to ensure that children continue to benefit from the financial means of both parents after separation. But while the money is actually paid to the custodial parent, the Supreme Court of Canada has held that child support is the right of the child, not of the parent, and that the child’s right to child support imposes a corresponding obligation on the parent to pay that support. For this reason, a parent cannot barter away his or her child’s right to support when negotiating a settlement with the other parent and any agreement entered into by spouses waiving an existing child support obligation is not in itself binding.
That does not mean spouses cannot enter into agreements waiving child support obligations. However, anyone entering into such an agreement should do so cautiously and with the understanding that child support is always open for review by the courts. For example, if a party to an agreement waiving an existing child support obligation asks the court to make an order for child support, the court is able at that time to determine the appropriate level of support for the child. In so doing, the court may consider the provisions of the parents’ agreement to see if there is sufficient justification for waiving child support. One justification may be where the parents have unequally divided their assets and/or debts to make up for support obligations. The court will also consider whether the agreement was reasonable and whether the agreement was entered into by the parties voluntarily with full disclosure and with the advice of a lawyer.
If you are thinking about entering into an agreement with your ex-spouse and would like more information about your rights and obligations please contact us.
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