Child Support: Agreeing to “No Variation” No Guarantee the Court Will Not Interfere

GEO_edited-1The parties in Skotnicki v. Cayen, 2019 ONSC 4831 separated in 2000 and for years struggled with child support disputes involving their three children. Finally, in December of 2017 the divorced couple entered into an agreement for child support which provided that it would “not be subject to any variation for any reason whatsoever.” The intent and expectation was that this phrase would put an end to their ongoing squabbles. Ms. Cayen even went so far as to waive support arrears and agree to a lower amount in exchange for an order that would be truly “final”. Did it work? Sort of…

In July of 2019 Mr. Skotnicki brought an application to vary child support alleging two material changes:

1. Their daughter, Natalie, moved out of her mother’s home in November 2018; completed her university education in December 2018 and commenced full-time employment in January 2019.

2. Their son, Joseph, moved out of his mother’s home to attend university in another province, living on his own.

With respect to Joseph, his father argued that he should no longer be required to pay his ex-wife $900 a month as he was paying equivalent funds to his son who was living in the same city he was. Joseph also spent a considerable amount of time in his father’s home, although he did not live with him.

After the father served his variation application, Joseph’s mother began giving her son $450.00 from the funds received from Mr. Skotnicki, keeping $450.00 for herself.

Mr. Justice Williams held that a support order restricting variation for “any reason whatsoever” is strong and specific wording, yet still does not bar a variation if the provisions of s. 17 of the Divorce Act are fulfilled.

However, the Court dismissed the father’s application to terminate Natalie’s support as of January 2019, holding that the order respecting Natalie, by virtue of the December 2017 order, terminated in March of 2019 and no uncontemplated material change had occurred.

With respect to Joseph, Williams J. found that Joseph’s move and change of university was clearly contemplated at the time of the 2017 order, and his mother’s evidence that she had paid for his return trips to her home on six occasions and kept a room for him in her home, was sufficient to continue the father’s obligation.

The time-worn adage that child support is never final is still true, however, in this case the Court easily found a way to respect the “no variation whatsoever” consent order.

Lawdiva aka Georgialee Lang

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