Maintaining a Child’s Standard of Living after Separation

February 4th, 2015 by John Schuman

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 and maintain the child’s standard of living prior to the separation.

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.

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 good family lawyer may be able to draft an agreement that persuades a judge to 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 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.

Child Support and Child Support Guidelines In Ontario

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 my 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.

Toronto Family Lawyer John Schuman Talks About Child Custody

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.

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.

There are a lot things that parents, and spouses, have to consider when going through a separation or divorce. Maintaining a child’s pre-separation standard of living is crucial during these difficult times. 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 $20 easy-to-understand book about Ontario Family Law.

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