How to pursue additional child support.

Q&A By John T. Syrtash, Associate,
Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 38  years

Question:  Last year, my ex and I agreed to terms of separation, which included (nominal) child support arrangements and access. The agreement was handwritten by me and signed by both of us not witnessed. He agreed as well to pay half of the cost of a divorce if I wouldn’t go after additional support. The agreement was never filed with the courts and the application for divorce not yet filed either. Are these legally binding documents or can I pursue additional support?

Answer: You can definitely pursue additional support. A domestic contract, such as a separation agreement, cohabitation agreement, or marriage contract are only enforceable if they are made in writing, signed by both parties, and witnessed. Even then, if the amount of child support you agreed upon did not follow the Child Support Guidelines, then a court may not be obliged to enforce the agreement unless food reason to do so. The Guidelines provide for basic monthly child support and special or “extraordinary” payments for extras based on your income as compared to your partner’s. The basic “table” amount payable is determined by a chart found on the Internet or in booklets from the government. The basic “table: monthly payment is determined by (a) the gross pre-tax yearly income of the non-custodial parent and is usually found at line 150 of his tax return (b) the number of dependant children the parents have between them and (c) the province in which the paying spouse resides. For instance, if your Ontario husband earned $50,000 gross in 2004, then for one child, the grid for child support under the Guidelines shows that he should be paying $429. If you have daycare/ nanny or other “extra” expenses of $1,000 monthly and earn 25 percent of your gross incomes (i.e., combined with your ex-husband), he would pay an additional $750 monthly, and you would pay the remaining $250. the same formula applies to orthodontics, summer camp, postsecondary tuition, non-OHIP healthcare, and some extracurricular activities, like hockey. But half the cost of an uncontested divorce is about $750. It’s nothing to worry about, especially if your signatures weren’t witnessed. Also, if you didn’t have a Certificate of Independent Legal Advice form your own lawyer before you signed, along with full financial disclosure from your husband/partner, then the whole agreement in completely enforceable on those grounds alone.

John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.

Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.

John T. Syrtash,
Yonge-Norton Centre
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell:  (416) 886-0359
Fax: (416) 512-9992

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