Family Law Blog

Can You Change an Unfair Agreement on Child Support or Spousal Support?

children deserving a fairer agreement on child support

The law treats changes to child support and spousal support quite differently.  But, either one can be changed in the right circumstances.  That can definitely fix and unfair agreement.


Child support is supposed to be reviewed, and changed, every year based the situation of the parents and the children.  Section 14 of the Child Support Guidelines states that any change in circumstances that would change the amount of child support by any amount justifies a court making an order to change the amount of support.  Sections 25 and 25.1 of the Child Support Guidelines require support payers to provide income information every year.  The combined effect of those provisions is that Child Support can be changed every year.  On top of that, section 14 of the Child Support Guidelines also provides that changes in circumstances of the children also justify a change in child support - that could include just about any situation where the child support agreement appears unfair to the children.  In fact, family court judges will want to change a child support agreement if it appears to be unfair to the children.


Spousal support is a little different.  Generally, courts like to hold separated or divorced spouses to their agreements - otherwise the courts would be full of ex-spouses wanting to fight out the same issues over and over again.  However, there is room for the court to intervene to fix an unfair agreement. 


Section 56(4) of the Ontario Family Law Actseparation agreement in divorce says that a Family Court can set aside the agreement if either side did not understand it (courts assume that each side needs independent legal advice to understand a separation agreement), if each side did not disclose significant assets or liabilities (which can include a proper valuation of the business), or if there are other problems under the law of contract (which may include duress, unequal bargaining power or other problems in the negotiations).  If any of those situations sound like they might apply to you, you should consult with a family lawyer right away. 

 

To learn more about the requirements to have an enforceable separation agreement, and the reasons why you can have a separation agreement thrown out, read this page.

Ontario Family Law Podcast - Episode 16 - How to conduct the Family Law Trail

 

Under the there terms of your agreement, you may also be able to ask a court to change the spousal support terms.  Some agreements specify when, or under what circumstances, a party can change the support terms.  When an agreement says you can change support, you can go ahead and seek a change in support if you  If the agreement does not say when you can change spousal support, then you can change the support under an agreement if you have had a significant or large change in circumstances. To find out how to do that, watch this video on changing a spousal or child support order or agreement.

 

To understand better whether your agreement was fair, or whether you should have gotten a different amount of support, or what amount of support you should expect if you seek a change in support, you should listen to this podcast on spousal support or this podcast on child support  (the first in a series of podcasts, or watch this video on spousal support.  Below is a video to help you understand if your child support is the right amount.

 

Guide to the Basic of Ontario Family Law (Book)Guide to the Basics of Ontario Family Law Available on KindleiBookstore_140x70

 

There is also a lot more on spousal support, how to get it, and how to change it, in this easy-to-understand $20 book on Ontario Family Law (that is very highly reviewed.)

 

But, as noted above, the best way to ensure you are treated fairly, and you protect your rights, is to speak to a good family lawyer who can make sure that your ex, or a family court judge, sees things your way.  Make an appointment immediately with Certified Specialist in Family Law, Toronto Divorce Lawyer, John Schuman, by calling 416-446-5847, emailing him or using the contact form below.  You can also use the contact form to comment on this page.

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Comments:

Jerry Reiss - Actuary at EBC

It is quite different here in Florida. Child support is based on guidelines. An agreement where the spouse pays too little may not be enforceable because the only way to depart from guidelines and pay less if the court were to make specific findings why paying less is in the best interest of the child. But it may be modifiable anyway upon a showing of a substantial change in circumstances and the burden is the same whether by agreement or by court order. Not so for alimony where the burden is higher by agreement. Changing permanent things such as property is extremely difficult and generally requires proving fraud. There is a difference between a mistake and a lie as well as between a lie and fraud and to use anything less than fraud requires showing that you were not represented at any time during the proceeding and not provided discovery. Only when those conditions can be met will an unfair agreement procured by overreaching work as a remedy. We have moved a long way in family that gives marital contracts almost parity with all other contracts.


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Why Lump Sum Child Support is a Really Dumb Idea - For Everyone!

Writing a lump sum child support cheque

When couples separate, they often want a “clean break”, meaning they want as little to do with each other as possible so that they start new lives. That is often a good idea.  It is a common, important, and good reason why, when spousal support is payable (listen to this podcast or watch this video to find out if it is), couples opt for a single “lump sum payment” instead of on-going monthly payments.   However, child support is very different from spousal support in a number of ways.  Lump sun child support payments, or the transfer of an asset, such as house, in satisfaction of all future child support is not a good idea - for anyone involved.  Ontario’s Family Law Act allows lump sum child support payments, but really discourages judges from ordering such payments.   When child support is payable, separated couples cannot achieve a complete clean-break because both parents should continue to have some involvement in the children’s lives.  In addition, lump sum child support is dangerous for the paying parent, the receiving parent and especially the children.


Parent repeatedly paying child support

In Ontario, since 1997, judges have to order child support that is in accordance with the Child Support Guidelines (even if the parents agree otherwise), unless the parents have agreed on arrangements that benefit the children as much as the monthly table support payments and section 7 payments pursuant to the Child Support Guidelines AND it would be somehow unfair to order those "usual payments."  You can see those provisions at sections 33(10) and 33(12) of the Family Law Act.  Judges very, very rarely deviate from strictly following the Child Support Guidelines.


One situation that clearly results in an unfair situation, that does not benefit the children, is where the parent with custody forgoes child support in exchange for receiving the family home. Again, that can be a good solution for dealing with spousal support, but does not work well for child support.  The parent receiving child support may need the child support to sustain the mortgage on the house. Without the child support, or because of other factors, that parent can lose the house that he gave up child support to keep.  However, the children suffer even more because they lose their home and they do not share in the economic security and stability of the parent who otherwise would be paying child support.   Both the law, and judges, support changing the child support terms in such situations.  That child support can be easily changed is why making an agreement for a lump sum child support payment, or the transfer of assets in exchange for future child support, is a very dumb idea for child support payers.  Those support payers can end up having to pay periodic support again in addition to the lump sum payment that was supposed to end their child support obligations.


Section 14 of the Child Support Guidelines states that any change in circumstances that would change the amount of child support by any amount justifies a court making an order to change the amount of support.  Sections 25 and 25.1 of the Child Support Guidelines require support payers to provide income information every year.  The combined effect of those provisions is that Child Support can be changed every year.  On top of that, section 14 of the Child Support Guidelines also provides that changes in circumstances of the children also justify a change in child support - that could include the children being at risk of losing their home.


On any request to change child support, section 37(2.3) of the Family Law Act
says the judge must again order Child Support in accordance with the Child Support Guidelines, unless the existing order or written agreement benefits the children as much as the "usual" child support arrangements and ordering the usual child support would somehow be unfair.   Again, judges rarely do this.


In situations where the parent who should have been receiving support could not make ends meet without on-going support, or even where that parent recklessly squandered that money, the lump sum child support payments turn out to be a really bad idea for child support payers.  The parent who got the lump sum payment can ask for the other parents’s income information, and if her income had changed at all (which almost always happens), then the support recipient can bring  a motion to change child support.  This video explains how to bring motions to change support.   Once that motion was before the court, the judge would be hard pressed not to order child support, perhaps even table child support, in light of the children’s circumstances.  After all, child support is for the children and to meet their needs.  Judges do not want to see children suffer because their parents made a bad deal.  That variation of support works well for the children who are suffering financially, but not so well for a parent who thought that that she had “pre-paid” all of her child support obligations.


A parent who paid lump sum support does not have to worry forever that his ex or children will can come back for more child support.  In the case of
Louie v. Lastman, the Ontario Court of Appeal said that child support claims can only be brought while the children are still dependent children.  So, when the children are all  adults who are finished school, neither they, nor the ex-spouse, are not in a position to seek child support, or even retroactive child support anymore (unless the child is unable to become independent because of disability or illness).


If you are still a dependent child (and children can continue to be entitled to child support past age 18), or the parent of a dependent child, then watch this video and listen to this podcast on how the amount of child support is determined under the Child Support Guidelines.


There is also a lot more on child support, retroactive child support, and how to change support orders in this $20-easy-to-understand book on Ontario Family Law.  That book, which has excellent reviews, also discusses most other family law issues.  


Nothing is better than speaking to a good family law lawyer (especially a lawyer who is a Certified Specialist) about difficult issues such as this one.  There may be particular facts in any case that make a big difference and only an in-person consultation with a lawyer will let you know what your rights and options are.  To meet with top Toronto Family Law and Divorce Lawyer, John Schuman,  please call 416-446-5847, email us, or use the form below.  As you can see from the post above, family law mistakes can be costly and meeting with a good family law lawyer can protect you form making such mistakes. 

Guide to the Basic of Ontario Family Law (Book)


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COMMENTS:

Guide to the Basics of Ontario Family Law Available on Kindle

Lillian LaRosa - Attorney at LaRosa/Toland Law Offices

I had one case some years ago where the child was already in college so the Court was ok with a lump sum for support in that situation. My client really wanted this outcome although I was not really sure that this was going to be approved by the Court and I would tend to doubt that this would work in Massachusetts for a child not close to the child support obligation finish line. Of course paying a lump sum could go both ways if there are changed circumstances - all in all it’s not a good idea.

 


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