When the spouses have signed a separation agreement that has resolved all issues such as custody, access, support and property division, and they now both want to be divorced, then one of the spouses can commence an application for divorce that consists of a request for a divorce only. One spouse has it served on the other spouse. If the other spouse agrees to a divorce, then he or she may choose not to contest the application for divorce. That is why it is called an uncontested divorce.

The Child Support Guidelines state that there is a presumption that one parent pays the other parent child support according to the payer’s annual income and the “table” amount. [To see the child support tables, go to www.benmor.com, Links, Federal Child Support Guidelines]

For example, a non-custodial father of 2 children who earns $40,000 per year would pay a table amount of $570 per month. But a family court judge is given the discretion to deviate from the table amount and reduce the amount of child support payable if the payor has the children in his or her care for 40% of the time during the course of a year. The discretion is based on section 9 of the Child Support Guidelines.

Because there is no formula that can be applied in an equitable way in all circumstances, this discretion has caused confusion.

In the 2002 decision of Contino v. Leonelli-Contino, the appellate court set out guidelines for considering a deviation from the presumption that one parent pays the other parent child support according to the payor’s annual income and the table amount. The appellate court stated that there is a presumption in favour of the table amount. However, the parent seeking a deviation may establish on clear and compelling evidence that a reduction in child support is in the children’s best interest, and also based on the circumstances, as described in section 9 of the Child Support Guidelines.

Yes. Before any agreement is made, each spouse should obtain independent legal advise from a divorce lawyer who will advise the spouse on his or her family law rights and obligations. This is necessary in order to recommend terms of settlement that are fair, practical and enforceable. It may not seem necessary now, but it can prevent many problems from arising in the future and reduce further cost and grief. Each spouse’s own divorce lawyer will protect that spouse’s own legal interests, inform that spouse of issues that he or she may not have considered and ensure that any agreement that is signed is fair, practical and enforceable.