How COVID19 Affects Child Support and Spousal Support


COVID19 and Support Podcast

The Corona Virus has had a previously unimaginable impact on our economy and the incomes of many Canadian. COVID19 has put many people out of work, reduced the incomes of many others and completely shut down some businesses, leaving the owners with no money at all.  What does that mean for child support and spousal support obligations?   In the short run, probably very little.  In the long run, perhaps a lot. 

The government has not enacted any new laws to change support obligations as a result of the Corona Virus.  Unless the support payer and the support recipient agree to something different, support continues as set out in the last court order or separation agreement.  The children or spouse who are dependent on that support remain dependent on that support.  

However, many support payers feel that the children or their ex cannot have financial security that they do not have themselves – especially when there is no money left. 

In ordinary situations, if a support payer’s income dropped and the recipient did not agree to change support, the payer could go to court and ask for a change.  But now the courts are closed to all but the mom desperate Family Law cases and for many judges cases about the best interests of children have to take priority over all financial matters.  All the reported Family Law cases since the start of the  corona virus crisis have dealt with looking after children.  Click to read this page that has up-to-date information about what judges have decided in those cases. 

As of April 6, 2020, the Superior Court of Justice started trying to hear more cases after having increased its capacity to deal with cases electronically.  But only the Superior Court for the City of Toronto will start hearing contested support motions without a judge first assessing whether the parties cases are so dire that urgent relief is necessary.  However, even in Toronto, the Court will only hear support motions that are necessary to preserve financial stability for the family.  For most of Ontario, the Court will only make new support orders where the situation faced by at least one party is truly catastrophic or where the parties have agreed to the order. 

Ontario Family Law Podcast

45 - Resolving Family Law Disputes While the Family Courts Are Closed Due to COVID-19

46 - Do Parenting Plans and Family Court Orders Continue During COVID-19?

47 - How COVID19 affects Child Support and Spousal Support

10 - Child Support - Who Pays and How Much?

13 - Spousal Support in Ontario and Canada

32 - How to Change a Support Order

35 - Resolving Children's Issues Outside of Court

With that said, for support payers who are having their support deducted directly from their pay, a reduction in pay may mean a reduction in how much money the payroll department sends to the Family Responsibility Office.  Pursuant to section 23(1) of Ontario’s Family Responsibility and Support Arrears Enforcement Act, 1996, the FRO can only get half of a support payor’s pay, so when pay goes down, the FRO will never get more than half.  

Similarly, if a support payer is suddenly on employment insurance, the FRO will still collect support from those payments, but the amount it can take may be much less. That can mean a reduction in the support collected.

It does not mean a reduction in the support owed.  Arrears of support will accumulate under the last support order unless the parties agree, or a court expunges those arrears later.

Also, like many other workplaces, the FRO has been affected by COVID19.  Their operations have been disrupted. The FRO has also recognized that it cannot strain the court system by using it to take aggressive support enforcement steps. So it will not be going after unpaid support as enthusiastically as usual. Again, that does not mean that the amount of support owing has changed.  In only means that the FRO Is not collecting the  support now.  The agency will collected the missed support payments later unless there is a new court order or written separation agreement that changes the amount owed. 

In the short term, support payers should be continuing to do their best to abide by their support obligations.  Their failure to do so may result in more enforcement measures or a court case later.

When the courts start to reopen, and support enforcement becomes likely again, there will lots of court cases about whether support should be reduced because that support payer’s income has gone down.  Lotos of families will be using the special, simplified, court procedure to change a support order or agreement.   Child support is supposed to change with the payer’s income.   Spousal support may change depending on the terms of the order or agreement. 

Support can change when the payer’s income changes. It looks like many people will see their income go down in 2020.  How much and for how long will be considerations for a judge.  A short blip may not justify changing support.  Something more could. With that in mind, an issue will be how quickly judges will jump in to change support.  They will not want to reduce support if it is just going to go up again in the near future when everything returns to normal.  However, a  judge  might consider reducing arrears accumulated if COVID19 was the cause of the missed payments.

How quickly support can change will be another issue. Section 16 of the Child Support Guidelines contemplates using the parents’ tax returns as the basis for calculating income for support.  As a result, many people adjust support, especially child support, when their tax returns are ready for the previous year because that is when there is a clear picture of what their income was.  In those cases, support is based on the income from the year before.  Support payers who income went down in 2020, may see their support payments go down in 2021, and then adjusted again in 2022 depending on how 2021 works out.

But, court decisions under the Child Support Guidelines also stress the importance of using  the most recent income information.  It is not necessary to wait for the T4s to come out next year to adjust income, particularly where the support payer is in financial hardship.  But, that will require convincing either the parent receiving support or the judge that change in income is permanent and is going to go past the end of COVID19.  After that, the support payer will have to establish what his or her new income is.  So, it may be better to be patient to let what the new income is become clear before running to court and using up the Court’s time and a lot of legal fees.  

On the other hand, judges do not like it when support payers unilaterally impose a change in support.  And one of the things that the payer must do to get an Order stopping the FRO from taking a license is start the court proceeding to change support.  So, it may be good to wait before running off to court, but not to wait too long.

However, when a judge does change support, section 34(1)(f) of the Family Law Act says that  the judge can change support  retroactively.  That means that a judge can order the return of an overpayment of support or more likely a credit against future support that can result in a support holiday going forward.  In D.B.S. v. S.R.G., the Supreme Court of Canada held that a judge can order a retroactive adjustment of support back to the date that one party can prove that he or she put the other party on notice that a chance so support was required.  So, if your income has gone down, now is the time to send that email telling your ex that and asking to change support.  Even if your ex says no, if your circumstances have changed, the judge may fix that later. 

If your ex does agree, as of April 6, the courts have been making new support orders when both parties agree.  That can change the amount the FRO collects, even if it is only temporarily. 

if you are not getting your full support payments, now is not going to be the time to get the FRO to take drastic support enforcement measures. The Order will stay as it is, and the arrears will accrue.  When this is over the FRO will take enforcement steps.  And, if your ex is just using COVID19 as an excuse to not pay support, then you will have an opportunity to explain that to the judge later, when everything, including your support, should have returned to normal.

Of course, parent do not have to wait for the courts to reopen to resolve support or any other family law matters.  Separated parents and spouses can use arbitration and family mediation to replace the Courts while they are closed, and even when they are not.

If you are having support problems, then it really is time for you to get in touch with a lawyer who can give you some advice based on the specifics of your situation.  Even during the Corona Virus crisis, it is possible that lawyer can contact your ex's lawyer and they can work something out.  A top family law lawyer can give you advice about your options and how to get to the result that is best for you. 

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To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5807, email him, or fill out the form below. You can use the same form to comment on this page.

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