Child Support Marriage Contracts

Parents Are At Odds About Whether They Reached an Accord

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Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Parents Are At Odds About Whether They Reached an Accord

In our recent Blog titled “Think You’ve Reached a Settlement Agreement?  Maybe You Didn’t!” we discussed that separated and divorcing couples reasonably assume that their negotiated settlement agreement comprehensively resolves the various legal issues between them – only to later realize that they disagree on how the agreement’s terms actually operate in their everyday life.

A straightforward example of this is found in the decision in Aquilini v. Aquilini.  When the couple divorced in 2013, they entered into a separation agreement that included provisions for child support in connection with their four university-aged children, all of whom were still deemed to be “children of the marriage” as that term is defined in the Divorce Act (being a child over the age of majority attending post-secondary education).  The agreement stipulated that the father would pay a specified amount of child support for each child who was still living with the mother.  But it also contained a provision specifically addressing child support for those children who were attending university elsewhere. It stated:

…if a child attends university away from home, the Child Support will be payable to [the mother] only for those months that the child returns to [the mother’s] home.

Seems straightforward, right?   Apparently, not so.

The parents disagreed about how this clause applied to two of their four children who were currently studying out of the province.  One was aged 20, and pursuing education in the U.S. but returned home to the mother’s place for parts of some months even during the academic year.  A second one was 19, and had just started attending university elsewhere, but returned home to the mother’s place during school breaks.

The court reviewed the contentious provision in context, which included looking at other terms that solidified the father’s basic support obligations to all the children under the federal Child Support Guidelines – Nafisa Nazarali (Managing Associate Lawyer)

The sticking point was the phrase “only for those months”” that the university-aged child returned.  The parents could not agree on how the father’s support obligation was impacted for any child who returned to the mother’s home for only part of a month (e.g. for a week or two at holidays or on Reading Week) but not for the entire month.

The parents applied for a ruling on this issue. The court reviewed the contentious provision in context, which included looking at other terms that solidified the father’s basic support obligations to all the children under the federal Child Support Guidelines, not just those who were over the age of majority and attending university.

The court wrote:

In relation to children over the age of majority, where parents have more flexibility to come to an arrangement reflecting their own means and needs, the parties have provided for basic child support only in the “months” the child is actually living with the claimant. The [mother], by maintaining a home, incurs certain costs throughout the year in anticipation of the children returning home for holidays.  But the parties in their agreement have chosen to notionally recognize, for support purposes, only those increased costs resulting from the child’s physical presence in the home. It follows, in my view, that where the child is living with the [mother] for only part of a month, the support should be paid on a pro-rata basis reflecting only that portion.

Arguably, the court’s ruling could have gone either way.  But the outcome hinged not merely on the wording of the specific sentence, but also on the overall agreement and the parents’ presumed intention when making it.

The practical takeaway is this:  If you are separating and in the course of negotiating a separation agreement, make sure you get the assistance of a lawyer who can help avoid any misunderstandings that can entail an trip to court to sort things out. Otherwise, what you think you both agreed to, may be something different from what you actually signed.

For the full text of the decision, see:

Aquilini v. Aquilini, 2019 BCSC 1146

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, 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. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.