Can Parents Have an Agreement for No Child Support and No Access?

For some parents, it seems that a “clean break” makes the most sense when they separate – and they feel that holds true for the children as well. Those feelings can be especially strong when the primary parent for the child feels the other parent has been uninvolved and uninterested in the child. Having that parent hang around can seem like a bad idea – especially if that parent seems like a bad influence. It can definitely be confusing for a parent to pop in and out of a child’s life. In addition, having that parent around can bring up bad feelings and bad memories that seem to interfere with the primary parent’s ability to be the best possible parent for the child.

Separated parents often ask their child custody lawyer or divorce attorney to create an agreement where one parent gives up all rights of access, or even to have a relationship with the child, and in return does not have to pay any child support – ever. This is a difficult agreement to put together because agreements are really only useful if a court makes the parties follow the agreement. Without that, the agreement is only good for as long as both parties continue to want to follow it but falls apart as soon as one side doesn’t like it anymore. Judges do not like no access/no support agreements.

From the child support side, there are many, many, many court decisions in which Family Court Judges have written that: “Child support is the right of the child.” Child support is meant to keep the child in the same standard of living as both parents. It is intended to make sure the child has everything that the child would have had if the parents had stayed together. It is the right of the child to have all of his or her needs met by parents. A parent should not just be giving away rights and entitlements that belong to the child. It is always better for a child to be supported by any parent who is under an obligation to pay child support because more money should mean the child has more advantages in life. It is so important that parents pay child support, that section 11(1)(b) of the Divorce Act requires judges to refuse to grant a divorce to parents if they have not made appropriate arrangements for child support.

A very skilled family lawyer may be able to draft an agreement that persuades a judge that the right (and very usual) circumstances exist that the judge should enforce the idea that parents should not have to pay child support in accordance with the Child Support Guidelines. Section 15.1(5) of the Divorce Act and section 33(12) of Ontario’s Family Law Act both provide that a court can order an amount of child support that is different from the Child Support Guidelines because the parents have agreed to that different amount, only if the special provisions for support in the agreement benefit the child as much or more than the Child Support Guidelines to the extent that it would be unfair to force the child to receive support under the Guidelines instead.

In order to have an agreement for “no support” to survive scrutiny by the Family Court, the terms of the agreement must show that the parties understood their legal rights before signing the agreement (in this case how child support works under the Child Support Guidelines). The terms of the agreement must also reflect that they are better for the child than applying the Child Support Guidelines, which can be a tricky thing to show if there is no support. It may involve using terms that refer to the cost of pursuing support, the detrimental effect of exposing the child to conflict or other considerations. You really need exceptional circumstances and a top family law lawyer to draft up an agreement for “no child support” to have any hope of a judge enforcing it.