Special Provisions & Child Support

All too often we negotiate agreements that include a "special provision" term as it relates to child support. The reasoning behind such an arrangement varies from situation to situation but in the end, the usual term includes a payment of child support that is less than the Child Support Guideline amount for the payor parent.

The recent case of Quinn v. Keiper, 2007 CanLII 39759 (ON S.C.) found at
http://www.canlii.org/en/on/onsc/doc/2007/2007canlii39759/2007canlii39759.html
deals with whether a "special provision" is in fact that.

Section 15.1 (1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides that a court may order a spouse to pay child support. Such an order is to be done in accordance with the Child Support Guidelines (s. 15.1 (3)).

In particular, s. 15.1 (5) provides that a different amount may be ordered if the court is satisfied:

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

The all too important question is do you have a "special provision" that would stand up to scrutiny if tested in Court.

The Court in Quinn v. Keiper held that the following needs to be determined:

(1) A "special provision" is out of the ordinary or unusual
(2) It replaces the need for ongoing support;
(3) It must benefit the child;
(4) The parties’ intention is not relevant as what is critical is whether the provision objectively benefits the child;
(5) An important factor to consider is how the level of support in the agreement compares to the support that would otherwise be required under the Guidelines?

The Court relied on the decision of the Court of Appeal in Wright v. Zaver 2002 CanLII 41409 (ON C.A.), (2002), 59 O.R. (3d) 26 (C.A.) in order to synthesize its position on this important topic.

Quinn v. Keiper is well worth the read in this writer's opinion and does provide a modern approach to a topic which can confuse the new family lawyer dealing with this during negotiations and drafting.

Any opinions on the issue would be greatly appreciated.