MAINTENANCE AND SUPPORT - Child support - Variation or termination of obligation - Spousal support

Law360 Canada (November 8, 2022, 6:14 AM EST) -- Appeal by the father from an order dismissing his claim for the retroactive variation of the parties’ child and spousal support agreement. The parties were in a marriage-like relationship from 2011 to 2016. Their daughter was now 10 years old. After the parties’ separation, the father married and moved to Australia. In September 2018, the parties entered into a separation agreement containing provisions requiring the father to pay the private school tuition for their daughter as well as a “tax free monthly amount of $10,000” for child and spousal support. The father made all payments required by the terms of the agreement until March 2020, when the COVID-19 pandemic shut down public events around the world, having a drastic, negative impact on his business. The chambers judge dismissed the father’s application to retroactively vary the support provisions of the agreement, concluding that the Family Law Act (FLA) did not permit retroactive variation of agreements for child support. The judge did not consider the father’s application to retroactively vary spousal support, apparently because the mother indicated that she was not asking for continued payments of $10,000 per month or for continued spousal support. On appeal, the father took the position that the judge erred in the interpretation of section 148(3) of the FLA. He submitted that the provision permitted a court to retroactively vary an agreement for child support. He further submitted that the judge erred in principle when he failed to give any consideration to the father’s application to set aside or replace the spousal support terms of the agreement....
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