Cases like this one are often difficult to resolve, especially when both parties have independent legal advice. In this case, both parties and their lawyers signed the agreement, which would lead one to believe that it is a binding agreement; however, when considerable financial disclosure is missing, such agreements may not be considered valid. When disclosure is an issue, it can be difficult to provide enough evidence to convince a decision-maker that material disclosure is missing.

With respect to the priority of child support, Corbett, J in the Walsh case reaffirms the sacrosanct nature of such support. His “bright white line” is a kin to a plastic bubble that insulates child support and protects such payments for the benefit of the children. Courts have long held the view that child support is the right of the child. Given the Court’s inherent jurisdiction with respect to children and it role in ensuring that that their needs are met, it flows that an obligation to pay child support is viewed quite differently than other financial obligations owing. Child support is indeed, virtually untouchable.

That being said, the wife’s failure to pay the costs award is unreasonable. Clearly, she had the funds to do so, especially given that she seemed to have no trouble finding the money to take the husband to court time and again and even to initiate repeated appeals. Those are costly endeavors. She clearly could afford to pay the costs order but chose not to. This was a deliberate act and one that in my view rightly requires some sanction.

People should be able to rely on the finality of their matter. I agree with Justice Czutrin’s decision in this case.

However, I do understand why the judge wanted to award the mother Child Support arrears. It would be entirely unfair if she lost out on hundreds of thousands of dollars because the father omitted pertinent information about his income, in violation of the parties’ Separation Agreement. Unfortunately, this is no excuse to ignore the very clear law on this point.

Instead, I believe that the judge should have made up for the Child Support that he could not award the mother by granting her more Spousal Support. I believe that more Spousal Support could have been awarded to the mother because she would likely have received more Spousal Support if she was receiving less Child Support. She should have received less Child Support because the courts did not have the jurisdiction to award the Child Support to which the mother would have been entitled if the daughter was still in school fulltime. Thus, the judge should have awarded the mother more Spousal Support instead of superseding the court’s jurisdiction by awarding the mother Child Support arrears.

I suspect that this decision will be appealed.