Parents often want to make a deal about child support.  It’s cheaper, less stressful, and faster than applying for a court order.  It’s often more tuned to the parents’ situation than a court order.  All good, right?

Nope.  Child support is the right of the child – not of the parent.  Good parents want to support their children.  A parent who does not have primary custody (the “payer”) should want their kids to eat well, be properly clothed, and housed.  But some parents can be worn down by the payer who refuses to pay.  Or the primary parent may believe that they will always be able to sort out child support as time goes along.  So, they agree to something less than what the kids are entitled to.

Courts will not permit parents to throw away their children’s rights.  This recently was underlined in the case of L.W. v. F.W. https://canlii.ca/t/jnv0f.  Mom and Dad had equal incomes.  They shared time with the kids equally.  So, they agreed to zero child support.  So far, so good.  But they wanted to go further: no child support – not even a court application about child support – for 6 years.  They wanted that to apply, even if one of their incomes rose dramatically, or dropped dramatically.  They asked for a court order to lock in that “no child support, no matter what” term.

Mr. Justice Hugh Veenstra rejected the application.  He quoted another judge: “As the right belongs to the child, it cannot be waived or bargained away by the custodial parent or lost due to that parent's neglect, delay, or lack of diligence in enforcing the right.”  He then ruled:

[25]       While child support is the right of a child, the practical reality is that its enforcement in the case of a minor child is usually dependent on one parent taking steps to secure that support – generally through an application to the court. The order that is sought in this case would purport on its face to prevent that from happening – even in the event of a material change that would otherwise give rise to a right to vary the existing order.

We presume that the parents in that case ended up wasting a lot of money paying for their two lawyers to negotiate a deal the court would never endorse.  They wasted their money for a court hearing and then written arguments from both lawyers.  All because they ignored a basic principle of law: you can’t sell another person’s rights.

Negotiating child support has many advantages.  But parents must always remember that they are dealing with the rights of the children – not their own rights.  While the court will endorse reasonable deals, it will never endorse a deal that could harm the interests of the children.

If you are negotiating child support, be sure you get Clear Legal advice.  We’ve been giving that since 1990.