DATE: 20040311

DOCKET: C39182

COURT OF APPEAL FOR ONTARIO

RE: DEBRA IRENE DEITER (Applicant/Respondent) – and – TERRANCE MARK SAMPSON (Respondent/Appellant)

BEFORE: GILLESE, ARMSTRONG and BLAIR JJ.A.

COUNSEL: Richard H. Barch, Q.C. for the appellant

J. Leigh Daboll for the respondent

HEARD: March 5, 2004

On appeal from judgment of Justice Patricia H. Wallace of the Superior Court of Justice dated October 28, 2002.

E N D O R S E M E N T

Release Orally: March 5, 2004

[1] The appellant father asks this court to overturn the decision of Wallace J. in which she ordered him to pay child support in accordance with the Guidelines. The father’s primary argument is based on the separation agreement that he and the mother of the children had entered into which gave the mother a far greater share of the matrimonial property and in which the father gave up any claim to spousal support. These, he says are “special provisions” that directly or indirectly benefit the children such that application of the Guidelines results in an amount of child support that is inequitable.

[2] Justice Wallace refused to recalculate the net matrimonial property, which is effectively what the father is asking for. Wallace J., at para. 7 of her endorsement, says this:

Because of the complete absence of financial or net family property statements, it is not possible to know how any of the factors like property value, contribution, renovation, loans, gifting and tax implications were factored into the ultimate agreement these parties negotiated with their counsel.

[3] We agree with this statement and decline to enter into the type of financial review that the father requests. In so concluding, we are mindful of the fact that both parties had independent legal advice when they executed the separation agreement and that there is nothing in the separation agreement to suggest that the unequal division of family property is to reduce the quantity of child support. The father had the burden to show that special provision was made and we are not satisfied that he has discharged this burden.

[4] The issue before Wallace J., and the real issue before this court, is the question of child support. We see no basis upon which to interfere with the decision below. The applications judge properly begins her analysis by noting that parents cannot contract away a child’s right to support. Willick v. Willick, (1994) 3 S.C.R., 670 at para. 16. Thus, the mother’s purported release to any child support claims in the separation agreement is of no effect. Further, the applications judge correctly applied this court’s decision in Wright v. Zaver, [2002] O.J. No. 1098, by approaching the matter of special provisions objectively and with a child‑centred focus. We see no error in her conclusion that there was no special benefit direct or indirect to the children from the separation agreement. Even if there were, the applications judge found that she could not conclude, in the circumstances, that it would be inequitable to require the father to pay child support in the Guideline amounts. We agree.

[5] Accordingly, the appeal is dismissed. Costs to the respondent fixed in the amount of $4,500, all inclusive.

“E. E. Gillese J.A.”

“Robert P. Armstrong J.A.”

“R. A. Blair J.A.”