The Ontario Court Of Appeal Comments On The Impact That Upholding A Party’s Separation Agreement Has On Access To Justice

Take a coffee break with Melanie Larock and read a weekly blog post about family law decisions released by the Court of Appeal for Ontario.

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In the Court of Appeal of Ontario’s decision in Zhao v. Xiao, 2023 ONCA 453 (released June 23, 2023, please click here for full decision), the parties had previously reached agreements with respect to property and child support. The Court of Appeal took the opportunity to remind us of the importance of upholding parties’ agreements in family law cases:

“There are strong and well-known policy reasons for respecting agreements made between parties to family law proceedings whenever feasible. Chief among these are access to justice issues. Given the reality that many families cannot afford legal representation, and the fact that agreements between parties lessen the strain on scarce judicial resources, courts should attempt to give effect to such agreements.”

On a different issue, the appellant had argued that the lower court erred in holding that Section 7 expenses ought to be shared by the parties in proportion to their household incomes as opposed to the parties’ own income. Despite the guiding principle that Section 7 expenses are to be shared by the parties in proportion to their own income, the Court of Appeal upheld the decision to use each party’s household income. Under Section 7 of the Child Support Guidelines, the Court may specifically consider “the means of the parents or spouses.” In this case, the appellant had remarried, and her new spouse had been funding a majority of the children’s expenses. The respondent had also remarried and was solely supporting his new spouse and children as his new spouse could not work due to illness.

Ultimately, it will depend on the specific facts of the case whether Section 7 expenses will be apportioned based on each party’s household income. This certainly raises issues surrounding disclosure to ascertain the new spouse’s income and means and the total income of the household.  

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About Melanie Larock

Melanie Larock is a family law litigator and a partner in Thomson Rogers’ Family Law group. Melanie’s focus is on all areas of family law with a particular emphasis on complex financial issues and high conflict parenting disputes. Melanie was trained by an illustrious litigator, and she is a self-proclaimed evidence law nerd.