Family Law Blog

Can Parents Have an Agreement for No Child Support and No Access?

child being cut off from parents

For some parents, it seems that a “clean break” makes the most sense when they separate - and they feel that holds true for the children as well.  Those feelings can be especially strong when the primary parent for the child feels the other parent has been uninvolved and uninterested in the child.  Having that parent hang around can seem like a bad idea - especially if that parent seems like a bad influence.  It can definitely be confusing for a parent to pop in and out of a child’s life.  In addition, having that parent around can bring up bad feelings and bad memories that seem to interfere with the primary parent’s ability to be the best possible parent for the child.


Separated parents often ask their child custody lawyer or divorce attorney to create an agreement where one parent gives up all rights of access, or even to have a relationship with the child, and in return does not have to pay any child support - ever.   This is a difficult agreement to put together because agreements are really only useful if a court make the parties follow the agreement.  Without that, the agreement is only good for as long as both parties continue to want to follow it but falls apart as soon as one side doesn’t like it any more.  And judges do not like no access/no support agreements.


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12 - How Step Parents and Grandparents Can Have to Pay Child Support

From the child support side, there are many, many, many court decisions in which Family Court Judges have written that: “Child support is the right of the child.”  Child support is meant to keep the child in the same standard of living as both parents.  It is intended to make sure the child has everything that the child would have had if the parents had stayed together.  It is the right of the child to have all of his or her needs met by parents.  A parent should not just be giving away rights and entitlements that belong to the child. It is always better for a child to be supported by any parent who is under an obligation to pay child support because more money should mean the child has more advantages in life.  It is so important that parents pay child support, that section 11(1)(b) of the Divorce Act require judges to refuse to grant a divorce to parents if they have not made appropriate arrangements for child support.


A very skilled family lawyer may be able to draft an agreement that persuades a judge that the right (and very usual) circumstances exist that the judge should enforce the idea that parents should not have to pay child support in accordance with the Child Support Guidelines.  Section 15.1(5) of the Divorce Act and section 33(12) of Ontario’s Family Law Act both provide that a court can order an amount of child support that is different from the Child Support Guidelines, because the parents have agreed to that different amount, only if the special provisions for support in the agreement benefit the child as much or more than the Child Support Guidelines to the extent that it would be unfair to force the child to receive support under the Guidelines instead.


In order to have an agreement for “no support” to survive scrutiny by the Family Court, the terms of the agreement must show that the parties understood their legal rights before signing the agreement (in this case how child support works under the Child Support Guidelines).  The terms of the agreement must also reflect that they are better for the child than applying the Child Support Guidelines, which can be a tricky thing to show if there is no support.  It may involve using terms that refer to the cost of pursuing support, the detrimental effect of exposing the child to conflict or other considerations.  You really need exceptional circumstances and a top family law lawyer to draft up an agreement for “no child support” to have any hope of a judge enforcing it. 


As noted above, the first step in getting a valid agreement for “no child support” is to make sure the parties understand their rights and obligations under the Child Support Guidelines.  They can learn about those rights by reading this $20-easy-to-understand book on Ontario Family Law, listening to this podcast, watching the video below, or, best to all, making an appointment to consult with a respected Ontario family lawyer


Another serious consideration that parents should think about before entering into a no child support/no access agreement is what can happen with child support if a judge does not respect the agreement.  Even if the parents signed the agreement years ago, if one parent changes his or her mind, it may be possible for that parent to get an order that child support should have been paid starting before the (unenforceable) agreement.  That may mean that the parent who thought he or she was protected from having to pay child support because he or she gave up having a relationship with the child, ends up paying child support anyway and also owes a huge amount of child support arrears.  Worse, it may not be possible to get out of paying all that back child support because support obligations are not erased by bankruptcy


The other way that no support/no access orders run into trouble is on the idea of no access.  There is a large body of research that shows that children benefit immensely from having a relationship with both parents. In addition to being exposed to different parenting styles and different perspectives, children develop a sense of indignity by knowing where they “came from” and accepting and rejecting aspects of each of their parents based on their experience of their parents and other people around them.   Except in extreme situations where contact with a parent places the child at risk of serious harm, contact is valuable.  Even where there is a possibility of harm, that must be weighed against the harm to the child from not having contact with both parents. 


There are several factors that Family Court Judges consider when deciding what order to make in relation to both custody and access of a child.  Those factors centre around what is in the child’s best interests.   The plans, or agreements, that the parents have made is just one of those several factors, and it may not be an important one.  Judges do not have to follow agreements between parents about custody, access or parenting. So, if the judge feels that the “no access” order is not in the child’s best interest, the judge may refuse to make it, or may order access in the face of the agreement - regardless of what the arrangements are for child support.


For a better idea of the different types of custody orders, and when each is appropriate, watch the video below. It may provide ideas for a parenting plan that would work, and that a judge might like better than a parent simply having no contact with a child ever again.


Another way that parents have sought to get a permanent “no support / no access” arrangement is by using adoption. Section 158(2) of the Child and Family Services Act states that when a child is adopted, there is no longer any legal relationship between the child and the original parents - including any obligations with regard to child support.  Further section 143(1) of the Child and Family Services Act specifically says that an adoption order ends all access.  So, some parents have tried to getting an adoption order that the child is “adopted away” from both parents to be adopted by one of the parents so as to sever the legal relationship with the other parent.  However, section 146(1) of the Child and Family Services Act says that a judge can only make an adoption order if it is in a child’s best interest.  For the reasons set out above, a judge may not believe it is in a child’s best interest to be adopted away from two parents to one of them just to create a “no child support / no access” regime for the child. If the judge believes that the adoption is for the convenience of the parents rather than the benefit of the child, the judge may refuse to grant the adoption.  Making his option work will also require some very skilled lawyering.


The Guide to The Basics of Ontario Family Law

It can be open to the parents just to informally agree to no access and no child support, but if either parent changes his or her mind, that arrangement could be changed entirely.


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There are a lot things that parents, and spouses, have to consider when going through a separation or divorce.  To find out what options will work best for you and who to get Family Law on your side, make an appointment to meet with Certified Specialist in Family Law, John Schuman by calling 416-446-5847, emailing him, or using the contact form below.  You can also learn a lot about the law of child custody, child support, and most other family law issues and how to “win” in your family law or divorce case by picking up a copy of this easy-to-understand book about Ontario Family Law, which is also available as a $9.99 eBook in from either Amazon/Kindle or the iTunes iBookStore

Guide to the Basics of Ontario Family Law Available on Kindle


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COMMENTS:

Al AaronAssistant County Attorney at Broome County

I never did like the idea of a child being a bargaining chip or piece of property in a matrimonial action.


Philip Marcus -  Jurist, Researcher, Lecturer and Writer

The answer to the question "Is it wise?" is an emphatic "No!" 

Parents have responsibilities to their children, not rights which they can exercise or not exercise according to their convenience or how they feel. 

They are both responsible to bring up the child to feel secure and loved, so (except in cases of abuse, where it is proven that contact of any kind with one parent would be dangerous to the child's welfare) they should both be with the child as frequently as possible; and each should strive to be a positive role model. They also are both responsible, according to the way this obligation is organized under law of the relevant jurisdiction, for supplying the child's material needs - a place to live, food, clothing, medical care, education, etc. 

These responsibilities continue even after the parents separate or divorce. 

The child is the beneficiary of these responsibilities. 

The idea that one parent has a right to child maintenance, which s/he can waive in the context of an agreement with the other parent, and that the other parent has a right to contact with the child, which s/he can waive in the context of such an agreement, should be repugnant. What about the needs of the child? 

So parents who agree that one parent shall provide none of these things for the child are in fact both neglecting the child, sacrificing the child’s needs and interests on the altar of their own convenience. Calling this a "clean break" (taken from the field of termination of property and financial relations between couple who divorce) assumes that separation and divorce mean a clean break of the parent from the child; only in very rare cases is this justified. 

So it is right that any agreement relating to a child's time with each parent after separation and financial support of the child should be brought before a judge for review, so that the child's needs will not be ignored. 

For more on the subject, see my article "Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships" on my website www.philip-marcus.com.


Andrea Ciobanu, MPA, JD - Managing Attorney, Ciobanu Law 

No, this is not wise and some states have provided opinions on this matter that it is is also illegal and unenforceable.

Please see:

“It is incomprehensible to this Court to imagine that either parent would ever stipulate to give up parenting time in lieu of not paying child support,” Justice David wrote on June 25, 2013, in the case of Michael D. Perkinson, Jr. v. Kay Char Perkinson, 36S05-1206-DR-371. “Just as allowing an agreement purporting to contract away a child’s right to support must be held void, an agreement to contract away a child’s right to parenting time, where the presumption that such parenting time is in the child’s best interest has not been defeated, must also be held void as a matter of public policy. Every child deserves better than to be treated as nothing more than a bargaining chip.”


This opinion further put the onus on attorneys, and rightly so:

"The concept of parents negotiating away parenting time as a means to eliminate the  obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. Here, an agreement to forego parenting time in exchange for relief from child support is declared void against public policy."


The opinion then discussed that the parent seeking to enforce such an order would have to present a high level of evidence that such parenting time was not in the child’s best interests.

The opinion cited Indiana Code section 31-17-4-2 which states that parenting time rights shall not be restricted unless there is a finding “that the parenting time might endanger the child’s physical health or significantly impair the child’s emotional development.”

The opinion also reiterated the primacy of parenting time between the child and the non-custodial parent: “[N]ot only does a noncustodial parent have a presumed right of parenting time, but the child has the correlative right to receive parenting time from the noncustodial parent because it is presumed to be in the child’s best interest.”

Full opinion may be found at: http://www.in.gov/judiciary/opinions/pdf/06251303shd.pdf.


Mark B. Baer -Family Law Attorney, Mediator, Collaborative Divorce Practitioner / Author / Lecturer / Keynote Speaker / Legal Analyst

Not only does such an agreement not take the child's interests into account at all, but it is in violation of public policy in California and would not be enforceable.


Linda Hammerschmid

In Quebec this type of agreement is voidable -- because child support belongs to the child and therefore a parent cannot negotiate it away. The Payor can see such an agreement set aside anytime , even if a lump sum was paid to have a clean break thereafter.


Walter Bentley III - Law Offices of Walter H Bentley III, PLLC

In Michigan, they are illegal and unenforceable. Access, Parenting Time, and custody are based on what's best for the child. It can be hard for clients to separate the two at times, which means I have to have some heart-to-heart conversations with some of my clients.



The Rules for Corporal Punishment (Spanking) Are Very Different in Canada and Florida

Cartoon about Corporal Punishment from the Freelance Star, Fredericksburg VA, October 26, 1961

Recently, CBC’s As It Happens interviewed an Under-Sheriff in Florida whose deputy had been called to witness a father “spanking” a twelve year old girl using a paddle. As the Florida police officer explains, Florida Law allows corporal punishment of children, even using objects, as long as it does not result in injuries such as dislocations, bone or skull fractures, inter cranial haemorrhage, suffocations, burns or disfigurement.  Twenty years ago, while working as an Ontario Paramedic, I remember responding to a call where a child had received that level of injury and his father said “It was his right to teach his child as [he] saw fit.”  While not entirely accurate, that statement did reflect section 43 of the Canadian Criminal Code, which permits the “correction of a child by force”. One of my first wins at trial was the successful use of that section in a criminal law case.


The Criminal Law Rules

That parent’s beliefs are no longer the law in Canada.  The rules for corporal punishment are much stricter.  They were set out by the Supreme Court of Canada in the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General).  In that case, an organization promoting children’s rights argued that section 43 of the Criminal Code violated section 15 of the Canadian Charter of Rights and Freedoms because in Criminal Law, there were already defences to using physical force (against someone’s will) to protect another person - such as grabbing a child, or other person, and pulling them out of the way of a speeding car.  The Supreme Court disagreed and allowed section 43 to stand.  However, the Court laid out strict rules for what is permissible corporal punishment.  These rules for parents, under the criminal law, are set out at paragraph 37 of the Supreme Court’s judgment, which says:


37                               Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, at para. 17).  Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age.  Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour.  Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful.  Corporal punishment which involves slaps or blows to the head is harmful.  These types of  punishment, we may conclude, will not be reasonable. 


Paragraph 40 of the decision sets out some further rules about what type of punishments are allowed by the Criminal Code and what types are not:

Degrading, inhuman or harmful conduct is not protected…  Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment.  Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality…   The gravity of the precipitating event is not relevant. 


The Child Abuse and Child Protection Rules

However, even if a parent does not use corporal punishment that is a criminal offence, using any corporal punishment can get that parent in trouble with a children’s aid society.  A children’s aid society may even decide to take children and put them in foster care if it feels that a parent’s disciple methods are inappropriate.  Children’s aid societies always view any use of corporal punishment as being inappropriate because current research does not support the idea that any form of spanking or hitting benefits child of any age or that it is an effective teaching tool. 


Section 37(2) of Ontario’s Child and Family Services Act sets out the types of child abuse that justify a children’s aid society, or child protection agency, intervening with a family and possibly apprehending children.  Those circumstances include a parent (or other caregiver) physically or emotionally harming a child, or putting a child at risk of physical or emotional harm.  In Children’s Aid Society of Rainy River v. B.(C.), the court held that infliction of real harm, that was more than trifling, could justify a children’s aid society stepping in to protect the children.   Whether the discipline violated the Criminal Code is not a consideration - it is whether the child is being really harmed or put a risk of real harm.


It may be possible for a parent who uses spanking or other forms of corporal punishment to convince the Family Court, that there is not proof that his or her discipline actually causes harm to a child.  It may be possible to do so only after a long and expensive court case. And for the duration of the court case, and possibly afterward, the children’s aid society will be intervening with the family, investigating and judging every aspect of family law and possibly reporting it to the police.  In addition, even before a judge finally decides the case, a Family Court Judge may order the parents to take course about how to discipline children, or anger management courses, domestic violence courses, or counselling.  This is because all of the social science research and child development research has found better ways to discipline children than spanking them, hitting them, or using other forms of corporal punishment.


The Guide to The Basics of Ontario Family Law

If a children’s aid society worker calls and wants to speak to you, or your family members, then you should read this page immediately.  If the child protection worker tries to speak to your kids, without your permission, read this page. If the CAS is investigating you for improper discipline, child abuse or neglect, you need to get help immediately!  It is very important to know not only your rights when dealing with a children’s aid society, but also how to avoid doing things that seem like a good idea, but that the children’s aid society will use against you.  Get a copy of this easy-to-understand book on Ontario Family Law in paper back or even better, as a $9.99 eBook for Kindle  which you can download in minutes and start reading right away.

iBookstore_140x70Guide to the Basics of Ontario Family Law Available on Kindle


However, if you have a children’s aid society investigating you, then you really need to speak to a good child protection lawyer immediately!   If you do the wrong things, or say the wrong thing, you could lose you children and they could end up in foster care, or adopted to new parents.  If the children’s aid society’s concerns involve you hitting children, then the police may become involved, charge you under the Criminal Code and put you in jail, at least until you get bail.  Only a consultation with a good child protection lawyer, can keep you out of serious trouble.


You can book a consultation with Certified Specialist in Family Law, Toronto Child Protection Lawyer, John Schuman, by calling 416-446-5847, or emailing him, or using the contact form below to send him a message.   You can also use the contact form to comment on this page.  If you found this page useful, please share it on your social network using the buttons at the bottom of the page. 


© John P. Schuman 2014