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Breached Separation Agreement? – The Court May Not Always Be Able to Help

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Breached Separation Agreement? – The Court May Not Always Be Able to Help

For those former couples who have a separation agreement in place, a recent Ontario decision underlines an important point about the scope of the remedies that may be available if one party breaches his or her contractual obligations.

In Wylie v. Sheehan, the mother and father had two children together. In 2008, they entered into a separation agreement providing for a shared parenting arrangement, but with the father being responsible for child support. The agreement also incorporated a mechanism for varying support if there had been a change in circumstances (as defined by the Child Support Guidelines), and the parents did mutually implement certain minor changes on three occasions over the years.

This worked well until 2011, when the father unilaterally stopped paying support entirely. He claimed that in light of a new arrangement involving the children alternating weeks with each parent on a 50/50 basis, each of them should now pay for the children’s expenses equally.

When the father stopped paying support, the mother went to court for a remedy. In doing so she relied on a specific provision in the Family Law Rules allowing a court to entertain a “motion to change” any separation agreement that dealt with child support.

However, the court pointed out that what the mother was asking for was not a change to the separation agreement (and the father’s child support obligations under it); in reality she was simply asking to have the original separation agreement enforced. While the court conceded that it had the power to discharge, vary or suspend child support, under the Family Law Rules there had to be a triggering event. In particular, there had to be an important fact or circumstances that had changed since the parties reached their agreement. The Guidelines defined “change” as involving such matters as a change in circumstances that would result in a different order in the first place, or else a change in the condition, means, needs or circumstances of either parent.

Here, there had been some minor changes (involving the children living with each parent on alternating weeks), but certainly no evidence of any relevant change respecting either parent’s income or other relevant financial factors.

The court also pointed out that in their separation agreement the parents had agreed that they would try to resolve any interpretation difficulties or differences about the contract by negotiating personally, and that court proceedings would be a last resort once all other possibilities of resolution were exhausted. And much to their credit, the parents had successfully done so for several years.

In short, the mother’s bid to get a court-ordered change actually bordered on “enforcement” rather than “variation” of the separation agreement, and this was not what the Family Law Rules were designed to do. On the basis of that technical distinction, the court refused the mother’s request. (With that said, the court did order the father to pay certain retroactive support he owed, and – in light of his recent refusal to uphold his end of the separation agreement – ordered the Family Responsibility Office to get involved).

What’s the lesson to be learned here? If you have a separation agreement, you will have to abide by it, including provisions relating to how the agreement is to be varied and how any disputes are to be settled. Separation agreements – being binding contracts – should be carefully worded and should accurately reflect the intentions of those who enter into them.

For the full text of the decision, see:

Wylie v. Sheehan, 2013 ONSC 6341  http://canlii.ca/t/g0xsg

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.