Court considers access-to-justice issues when ruling on divorce agreement

Courts should try to uphold agreements made between parties to family law cases whenever feasible because such agreements lessen the strain on scarce judicial resources and because many families cannot afford legal representation, the Ontario Court of Appeal recently said.

A married couple with two children divorced in 2003. They filed a joint affidavit regarding child support and the treatment of their matrimonial home. Specifically, they agreed to the following provisions:

• The father would pay the mother monthly child support of $950 per child
• If there were future changes in income, each child would get monthly support of 17 percent of the father’s gross income until they turned 18
• The 17-percent rate would go down to 12.5 percent of his taxable income if the wife remarried
• The wife could get the matrimonial home by paying $74,600 in monthly installments equivalent to the monthly child support commencing May 1, 2006
• She had to pay this amount on an accelerated basis if she remarried

The agreement thus transferred the matrimonial home to the mother. She did not tell the father about her remarriage in 2006 so she did not pay the amount on an accelerated basis. Because the father did not disclose his annual income information, she could not calculate the amount for monthly child support payments.

In 2016, the mother applied for child support and other relief. Her application partly succeeded. The court ordered the father to pay ongoing child support, including his proportionate share of the expenses under s. 7 of the Federal Child Support Guidelines, SOR/97-175 until the children turned 25.

The mother appealed from the order of the judge of the Ontario Superior Court of Justice, which affirmed the order of the application judge of the Ontario Court of Justice.

Agreement thoroughly considered by courts

In Zhao v. Xiao, 2023 ONCA 453, the Ontario Court of Appeal dismissed the appeal. The lower courts’ judges thoroughly considered the agreement in the joint affidavit and the circumstances of the parents and their children, the appellate court said.

First, the appellate court upheld the decision not to award retroactive child support from May 1, 2006 to June 2, 2013. It found no basis to interfere with the application judge’s findings.

For that period, the application judge calculated the quantum of child support based on the 12.5-percent rate since the mother had remarried. Given the lack of the father’s disclosure, the judge set his income at $65,000 at the mother’s request. The amount that the mother owed relating to the matrimonial home essentially offset the amount that the father owed for child support, the judge concluded.

Second, the appellate court affirmed the determination that the parents share ongoing special and extraordinary expenses for the children in proportion to their household incomes. The application judge’s decision to apportion the s. 7 expenses in this way was reasonable given the facts, the appellate court said.

The record showed that the father had remarried and solely supported his children and his current wife, who was unable to work due to illness. On the other hand, the mother could work in paid employment since 2008 but chose not to do so. Her second husband listed the children as his dependents, covered the eldest child’s educational expenses through his university employee benefits, and also paid most medical and dental expenses.

Lastly, the appellate court agreed with the decision that child support should end upon each child’s 25th birthday. The application judge reached a discretionary determination that was not arbitrary or speculative, the appellate court said.

The application judge chose the age of 25 while considering all the circumstances, including the facts that the eldest child was in medical school and the younger daughter was an undergraduate student, the appellate court explained.