Bargaining Child Support for Parenting Time

Lessons from A v J, 2025 ABKB 698

Informal agreements are common in family law. Parents often believe that if they both consent to a new arrangement, particularly one that feels practical or fair, it should be respected. A recent Alberta decision, A v J, 2025 ABKB 698, serves as a cautionary reminder that when it comes to child support and parenting time, parental agreement is not always enough.

The case underscores a principle courts have repeated for decades: child support is not a parental entitlement that can be waived, it is a right that belongs to the child.

The Facts:

In A v J, both parents were self-represented. They entered into an informal agreement under which the father gave up most of his court-ordered parenting time in exchange for the mother forgiving approximately $4,588 in child support arrears and waiving ongoing support. For about nine months, the arrangement was followed. When disagreements arose, the parties reverted to the original court order, and the mother sought to enforce the arrears.

The father argued that it would be unfair to require him to pay support arrears after he had already “paid” for forgiveness by sacrificing parenting time.

Justice Hollins disagreed, holding that the agreement was unenforceable as a matter of public policy.

The Issues:

1. Is their agreement enforceable at law?
2. If not, is the mother estopped from enforcing her claim for arrears?

Child Support Is the Child’s Right

At the heart of the decision is a well-established principle: a child’s right to financial support belongs to the child, not to either parent (para 12).

Parents may, in practice, make informal compromises, but courts will not enforce agreements that undermine a child’s entitlement to support or meaningful time with both parents (para 12).

Justice Hollins emphasized that there was no evidence the father was a bad parent (para 13). On the contrary, the child could have benefited from both the original parenting schedule and the financial support that was suspended under the agreement.

The practical effect of the parents’ arrangement was that the child lost the benefit of both consistent financial support and regular contact with her father.

Why “Fairness” Between Parents Isn’t the Test

The Court acknowledged that the outcome felt unfair to the father, who relied on the mother’s promise and acted to his detriment. However, at paragraph 18, Justice Hollins cautioned that focusing on fairness between parents’ risks undermining the broader public policy goal of protecting children:

“Trying to do what is fair … risks subverting the rule, informed by public policy, which is designed to prevent parents from bargaining away the rights of their children” (Hunt v Smolis-Hunt, 2001 ABCA 229 at para 167-168).

Children are not parties to these private agreements, and their interests may diverge sharply from those of their parents. This is precisely why courts intervene.

Estoppel Can’t Be Used to Defeat Child Support

The father also argued that the mother should be prevented (or “estopped”) from enforcing arrears because he relied on her promise. While the technical elements of promissory estoppel appeared to be present, the Court held that estoppel cannot apply in child support matters unless it is consistent with the child’s best interests (para 21).

Because child support is the right of the child, the mother lacked the legal authority to permanently waive it in a way that disadvantaged the child. Allowing estoppel in these circumstances would effectively permit parents to do indirectly what they cannot do directly: contract out of child support.

Conclusion

Although the father was required to pay the full arrears, the Court did recognize that the child lost meaningful parenting time during the period the unenforceable agreement was followed. To address this, Justice Hollins granted the father additional make-up parenting time (one extra Saturday per month for a year), reinforcing that parenting time, like support, is also a child-centred right (para 32).

Notably, the Court also awarded costs to the father, finding that the mother knew the agreement was unenforceable and nevertheless placed him in a legally disadvantageous position.

A v J is a clear reminder that parents cannot contract out of child support, even by mutual agreement. Any arrangement that trades support for parenting time or vice versa, is vulnerable to being declared void. Courts will always prioritize the best interests of the child over the perceived fairness of a deal struck between parents.