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Epstein’s This Week in Family Law | Child support agreement

A Saskatchewan court refused to retroactively vary a fixed and definite child support agreement in recent decision

Epstein’s This Week in Family Law

Philip Epstein

Retroactive Child Support Claim in the Face of a Fixed and Definite Agreement

Basso v. Reesor, 2015 CarswellSask 625 (Sask. Q.B.), Queen’s Bench for Saskatchewan - Sandomirsky J. This decision from the Queen’s Bench for Saskatchewan bears a remarkable similarity to the issue discussed in Marchioni v. Marchioni, above. The issue before the Court was whether it could retroactively vary a child support agreement that was for a fixed and definite period of time.

The father’s circumstances had dramatically changed because he lost his job in the oil patch. The Saskatchewan court took judicial notice of the dire economic conditions in the oil services industry and recognized that the father was not underemployed. However, the agreement between the parties clearly confirmed that a fixed level of child support was to remain in place until December, 2013, and thereafter, support was to be based upon the Child Support Guidelines. The Court asked itself the question of whether the language of this child support agreement, which was incorporated into a court order, precludes a retroactive adjustment for the period prior to December, 2013.

To answer that question, the Court takes a look at the Supreme Court of Canada quartet arising from S. (D.B.) v. G. (S.R.), 31 R.F.L. (6th) 1 (S.C.C.) [D.B.S.] and the Saskatchewan Court of Appeal’s earlier decision in Graham v. Tomlinson, 87 R.F.L. (6th) 243 (Sask. C.A.). In Graham, the Court of Appeal answered the question as to whether the court has jurisdiction to award retroactive child support upon an application to vary when there was a pre-existing agreement as to child support which was clearly and unequivocally worded. The Saskatchewan Court of Appeal upheld the chambers judge’s decision to give supremacy to the minutes of settlement, and applying that analogy to this case, the Court held that the consent order is the same as the agreement in Graham and, therefore, because the original order is clear and unequivocal, it cannot be varied.

Justice Sandomirsky, an extremely experienced Family Division judge stated as follows:

There is a distinction to be drawn between child support orders which are set for an indefinite term and those in which the obligor and oblige expressly agree to a defined, definite and fixed term before adjustments are permitted. A retroactive order would clearly contradict the parties’ 2012 order which, in my opinion, precludes a retroactive adjustment before December 1, 2013.

Very respectfully, I have some doubts about this and the doubts go back to Graham. Given that child support is the right of the child and given that parties cannot bargain away the rights of the child with respect to child support, it is difficult to see how an agreement can take supremacy over the Guidelines and the determination of the proper amount of child support in accordance with the principles in D.B.S.

Here, the period of fixed child support was relatively short and, nevertheless, created an obligation that the father might well be unable to pay because of the changes in his economic conditions and changes in the oil patch. If Graham is rightly decided, and the agreement had been for five years, it would have created an impossible situation with no relief for the father.

The lesson for the family lawyer is that one should be wary of fixed agreements and one must consider whether there should either be a material change clause or a catastrophic change of circumstances cause in order to protect the parties from unwarranted or unforeseen changes in circumstances, particularly, if they are drastic. Clearly, Saskatchewan has decided the law on this issue for that province, but I have some doubts about the correctness and applicability of this decision in the rest of Canada.

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