“In general, the lay off of an employed person due to COVID 19 closures and that person’s receipt of Employment Insurance could well provide a compelling reason to temporarily reduce child support obligations. The respondent is not that person.”
– Justice Mackinnon
That being said, the question remains: are you “that person”? The answer: “it depends.”
The worldwide impact of the coronavirus pandemic is well-known. These unprecedented and challenging times have taken a significant toll on people all across the world. In addition to the increased health-related worries and anxieties that mirror the ever-growing number of confirmed cases, given the coronavirus’ devastating economic impact, many families are also experiencing financial insecurity and instability due to job losses and lay-offs.
As a result, many families are trying to see what financial relief they can obtain to either assist with the ongoing payments towards their monthly obligations and/or to suspend or minimize the quantum of their various monthly obligations. Unsurprisingly, in this context, both the recipients and payors of spousal support and/or child support are considering what impact, if any, the coronavirus pandemic will have on their monthly obligations and entitlements.
What impact does the coronavirus pandemic have on monthly obligations and entitlements?
To quote the usual lawyerly answer, “it depends.”
There is not a one-size-fits-all response to the impact of the coronavirus on child support and spousal support obligations given that each case turns on its own facts. In addition to the court’s specific fact-finding process, there are several principles that should be kept in mind:
#1. Court orders must be obeyed
As judges have repeatedly stated, court orders are not suggestions. They are orders. They are to be respected. Parties should not be required to bring motions or threaten to bring motions to expect compliance.
#2. Make best efforts to ensure compliance
If due to unforeseen circumstances beyond one’s control (i.e. not an intentional self-induced change), the ability to obey a court order is genuinely affected, one must first make best efforts to ensure compliance, and if the matter returns to court, to come to court with “clean hands.” In the context of someone whose income is reduced as a result of the coronavirus pandemic, best efforts and clean hands would require first trying to avail oneself of the various government relief programs such as the Wage Subsidy Program or the Canada Emergency Response Benefit. It is not enough to simply rely on the pandemic to completely shirk one’s responsibilities especially if there are financial options and other avenues that can be pursued. “Other avenues,” for example, could include the receipt of a new job offer or employment opportunity despite these difficult times.
#3. Try to reach a temporary agreement outside of court
If there is a change in one’s circumstances that would warrant a temporary reduction in one’s support obligations, best practices would include explaining the financial situation to the child support and/or spousal support recipient in an effort to reach a temporary agreement without the involvement of the courts. Proceeding to court by way of an urgent motion should be the avenue of last resort.
#4. If you do go to court, the court will make its findings based on the evidentiary record
Whether you are bringing or responding to an urgent motion for support, the court will make its findings based on the evidentiary record. However, as part of its gatekeeping function, the court retains the discretion in determining whether the issues raised in the motion are “urgent”.
While the issues might be important, they might not necessarily meet the threshold of urgency. Similarly, whether the pandemic has played a role in one’s ability to pay support will also be fact-specific. As one judge noted in a recent case, “In general, the lay off of an employed person due to COVID-19 closures and that person’s receipt of Employment Insurance could well provide a compelling reason to temporarily reduce child support obligations. The respondent is not that person. His income has not gone down or been discontinued on account of COVID 19. Given his area of work as an IT Consultant it cannot simply be presumed that he has been and is unable to obtain any contract work now.”
Meanwhile, in another case, the court found that “Absent the COVID-19 pandemic, based on this information, the court would have assessed the [payor’s] annual income at $40,000. However, the court is very aware that the pandemic is having a detrimental financial impact on taxi drivers and will make a more conservative estimate of the [payor’s] income on a temporary basis. On a temporary basis, the court will impute the [payor’s] annual income at $25,000.” The court will determine the cause of the reduction of the payor’s income and the payor’s ability to earn an income. In its consideration of whether the status quo should remain or whether the support amount should be reduced, the court will also determine the appropriate amount (i.e. quantum) of support that should be paid.
This serves as a reminder that the impact of the coronavirus on child support and/or spousal support obligations, if any, will depend on the facts of each case. However, one should always take their child support and spousal support obligations seriously. The courts will be wary of those who try to rely on the coronavirus pandemic to shirk their responsibilities especially where the facts show that the claim is baseless and meritless given the evidentiary record. The key takeaway is that the coronavirus should not be used as an excuse. Without an evidentiary basis, the coronavirus pandemic will not support the reduction of your child support and/or spousal support obligations.
For some, reliance on the coronavirus will be the worst excuse and yet for others the best support for a reduction in support obligations.
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