“I begin my analysis by confirming that child support is the right of the child, and no contract or agreement can operate to oust the jurisdiction of the court to order interim child support: Deiter v. Sampson, 2004 CanLII 12841 (ON CA), [2004] O.J. No. 904, at para. 4.
When there is a dispute surrounding a separation agreement, the central issue to be determined is the validity of the agreement. Only after that is determined can any secondary issues be addressed, including, for example, support: Chee-A-Tow v. Chee-A-Tow, 2021 ONSC 2080, at paras. 36-38.
However, in Salzmann v. Salzmann, 2004 CanLII 5009 (ON SC), [2004] O.J. No. 166, the court held (at para. 19) that interim spousal support may be granted, in spite of a waiver of spousal support, where there is a triable issue as to the enforceability of a contract.
On motions for interim spousal support, courts should apply the two-stage approach as set out by the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2023] 1 S.C.R. 303, when assessing whether spousal support should be ordered despite it having been waived in an agreement.
As the court held in Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907, at para. 20:
In my view, the court, on an application for interim support, is required to conduct the Miglin analysis. If, on the evidence filed, a serious issue to be tried has been raised with respect to the circumstances under which the contract was negotiated and executed, then the contract will not act as a bar to the application. This is particularly the case in circumstance where, as here, if the contract is upheld at trial, there are assets in the applicant’s name that can be used to compensate the respondent for any support that should not have been paid. Interim orders are not final orders. As noted by Granger J. in Cafik, they are meant to provide “a reasonably acceptable solution to a difficult problem until trial.””