Post Agreement changes to Child Support

Kudoba v. Kudoba (2007), CanLII 41273 (ON S.C.J) is a very recent Ontario Superior Court of Justice case found at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii41273/2007canlii41273.html.

This case deals with a Court's analysis of whether child support should be ordered pursuant to the Child Support Guidelines, when there is a Separation Agreement in place.

The Honourable Mr. Justice D.J. Gordon spends a considerable amount of time analyzing the issue through the lens of the spousal support variation cases of the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, and Pelech v. Pelech, 1987 CanLII 57 (S.C.C.), [1987] 1 S.C.R. 801. He also referred to the last Supreme Court triliogy (although it was 4 cases) on child support in D.B.S. v. S.R.G., 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231.

Essentially the Court recognized that it is not bound by a Separation Agreement when looking at child support and that the contextual approach to the case is needed. A retrenchment of the view that contractual law does not apply in this context rules the day.

What the case really stands for in this writer's opinion is as follows:

1. Counsel that prepared the Separation Agreement should not be the trial counsel;
2. Language in an agreement is very important in defining the intention of the parties and the legal ramifications of adherence and interpretation down the road;
3. Trial counsel needs to properly quantify child support claims and section 7 extra ordinary expense claims;
4. Be prepared to prove the case at trial.

I had a professor at law school that aptly said if you are the plaintiff/applicant your primary job is "to prove or lose".

This case is all about the prove or lose theory as it seemed that the trial judge did not have enough evidence to make a finding that the Applicant was entitled to support contrary to the Agreement during the interim period.

An excellent case in this writer's opinion on the pitfalls to avoid. Commentary is always appreciated.