Ontario Chinese Divorce Lawyer: Can You Agree to Pay Zero Child Support in a Separation Agreement?

I hear this a lot: “We do 50/50 parenting, so neither of us pays. Let’s just leave child support out of the agreement.”

Short answer: No.

In Ontario, you can’t waive child support. It belongs to the child, not to the parents to bargain away. It’s mandatory, income-based, and set against national guidelines.

You can negotiate property. You can negotiate spousal support. Child support is different.

Can we just leave it out?

No.

Leaving it blank doesn’t mean it’s dealt with. A separation agreement should spell it out: who pays, based on what income, how much, and Section 7 special expenses.

If the numbers say support is payable and you deliberately leave it blank or write “neither party pays,” it will come back to bite you.

If you’re common-law, you don’t need a divorce, so the court won’t jump in on its own. But as soon as one party starts a court case, the judge will calculate support based on both incomes. Bringing the agreement as a defence — “but we agreed on zero” — won’t work. A clause waiving child support is void and unenforceable, even if it’s in writing.

We wrote “no child support.” Will the court honour it?

Usually not.

Under s. 56(1.1) of Ontario’s Family Law Act, the court can disregard the child support terms in a domestic contract if they’re unreasonable in light of the Federal Child Support Guidelines.

Saying privately “I don’t want it” is the same as writing it in. You can’t give away the child’s right.

If you both privately agree on zero and there’s no dispute, the court isn’t going to chase you. But once there’s a dispute, the court decides under the law and the child’s best interests.

Why is our divorce stuck even though we both signed?

Because of s. 11(1)(b) of the federal Divorce Act. The judge has to be satisfied that reasonable arrangements have been made for the support of the children, measured against the Guidelines. No child support paid usually means no proper arrangement — the child’s interests aren’t protected — so the court holds off on granting the divorce.

It’s not the judge being difficult. It’s the statute. The most common problem in the paperwork is numbers that don’t line up with income. The court then issues a requisition or sends it back.

We do 50/50. Do we still have to pay?

Often, yes. Child support turns on both incomes, and it’s rare for two incomes to be exactly the same. Even a small gap can mean one parent owes the other.

So even with equal parenting time, run the numbers first under the Guidelines. If you’re not sure how, have a lawyer run them.

We agreed on zero before. Can I go back and claim it later?

Yes. If you agreed on zero and there’s a dispute later, the law clearly allows you to start a court case for child support. The court will set the amount based on both incomes.

Does it have to match the table amount exactly?

Not necessarily. What we call the table amount is the starting point.

Paying more is usually fine. Paying less, the court will ask you to explain it when you apply for divorce. If the explanation is reasonable, you’ll still get your divorce order. If the court isn’t satisfied and thinks the lower amount is unreasonable, it will likely hold up the divorce.

This is where a lot of DIY divorces get stuck. We handle a high volume of divorce applications, so we know how to prepare the materials and what the court needs to see to move it through quickly.

Is spousal support the same?

No. Different rules.

Spouses can negotiate spousal support, and you can waive it in an agreement, including a prenup or postnup. But the court will look at the length of the marriage and both incomes.

If the court thinks the waiver is unreasonable, or if someone genuinely needs support — poor health, mental health issues, no capacity to work, can’t find work — the court can override the agreement and order support anyway.

So spousal support clauses need to be drafted clearly. A one-liner won’t cut it. Talk to a lawyer who practices family law.

To book an initial consultation (30 minutes, $220+HST), call 647-930-6688.

This article provides general legal information only. It is not legal advice and does not create a solicitor-client relationship.