Can I Waive Child Support in Canada? This is a question our top rated family lawyers get asked frequently. The answer is no except in special circumstances where there is shared parenting with equal incomes of both parents, a large lump sum payment or a longstanding inability to pay that might under special circumstances be satisfied by an unequal property division in favour of the parent who looks after the children or perhaps an agreement to pay children as beneficiaries of a family trust.
Can I Waive Child Support in Canada? Calgary Tel: 587-779-8011
As we have repeatedly stated in these articles, there are certain basic rule in Canadian Family Law. Two of the most basic principles are:
- Parenting of children is determined by what is “in the best interests of the child”, and;
- Child Support is the right of the child.
Can I Waive Child Support in Canada depends on both issues. But are these two principles interconnected, and can they simply be waived by the parents? The short answer(s) are: yes and no.
BC and Calgary Parenting & Child Support Vancouver Tel: 604 602 9000
Regarding parenting, children (presumably in most cases) benefit from spending as much time as possible with each parent [as is recognized by Section 16(6) of the Divorce Act and Supreme Court of Canada cases from Young v. Young (1993) to Barendregt v. Grebliunas (2022)]. Once the parenting arrangement is determined, you then determine the child support payable. Child support (and particularly the obligation to pay child support) flows from legislation [ie. s. 15.1(1) of the federal Divorce Act; s. 49(1) of the provincial Family Law Act (FLA)] in amounts as set out in the respective Child Support Guidelines. Both parents have an obligation to pay child support to the other parent, the amount(s) depending on the parenting arrangement for the child(ren) and incomes of the parents. However, Courts can vary the amount(s) of child support payable under the Guidelines for various reasons (ie. family debt, ‘access’ costs, obligation to support other children or people, etc.; see our previous article “5 Reasons to Reduce Child Support” –
Agreements Not to Pay Child Support Tel: 604 602 9000
But what if parents want to do their own deviation from the Child Support Guidelines, or even not pay child support to the other parent at all. Can parents agree to waive their child support obligation and not pay child support? And perhaps more importantly, would this agreement hold up in Court? All good questions. Fortunately, the Courts have given pretty clear direction on this.
In BC, Generally, one spouse’s reliance on another’s unenforceable promise has no legal consequence. For example, an agreement waiving child support will not be enforced merely because one spouse relied on it.
Vancouver Can I Waive Child Support in Canada? Tel: 604 602 9000
Courts in BC and Alberta have been very clear that parents cannot unilaterally waive their child support obligation except if there are good reasons for doing so. In the 2006 case of J.M.B. vs. A.C.B. (2006 ABCA 150, citing the 1994 Supreme Court of Canada case of Willick v. Willick), the Alberta Court of Appeal held (at para. 37):
“It is clear that waivers of child support are not binding on the court and that the court may intervene when there has been a unilateral change of circumstance or other proper ground to intervene in the best interests of the child: Willick v. Willick..”.
More recently, in the 2017 case of Caufield v. Wong (2017 ABCA 288) the Court of Appeal held (at para. 6-7):
“While child support is the right of the child and not of the parents, the FLA does not preclude parents from entering into agreements, including those embraced in consent orders, quantifying, limiting or forfeiting child support in exchange for other consideration… While a change in primary residency is a change in circumstances that grants jurisdiction to reconsider child support, it does not compel a change in child support when the parents have agreed to that result, even in advance, after receipt of legal advice…”
Calgary Can I Waive Child Support in Canada?
Even more recently, in the 2019 case of CJ v. PRM (2019 ABQB 708), Alberta Court of King’s Bench Justice M.J. Lema referenced Justice Schutz’s acceptance of parents’ agreement to waive child support in a shared parenting arrangement, holding (at para. 4):
“in consideration of the similarity of household incomes between the parties, and the equal ability of the parties and the parties’ spouses to support [the child in question], no section 3 child support shall be payable by either party. The parties agree that there will be a mutual waiver of section 3 child support unless there is a material change in circumstances to either the [mother’s] or the [father’s] income.”
So, can parents simply deviate from the federal or provincial Child Support Guidelines or even waive their child support obligations and not pay child support to the other parent at all? The simple answer is – not really. Courts (judges) have the ultimate say as to whether child support can be varied or waived, and they will only do so for specific reasons and where they are satisfied that reasonable arrangements for the financial support of the child(ren) have been put in place.
Which takes us back to the basic principles of family law: child support is the right of the child, and they are entitled to receive it by law (Divorce Act, FLA, Child Support Guidelines, etc.). Child support cannot simply be bargained away by the parents. Courts will only vary or allow parents to waive child support if it satisfies the Parenting principle: is it in the “best interests of the child”.
