If your workplace has been ordered by emergency order to be shut down, or you have otherwise been unable to continue to work due to COVID-19, consideration should be given to ongoing child and spousal support obligations.
If a support payor is collecting the new CERB, the Family Responsibility Office cannot garnish that benefit, being $2,000 monthly taxable for currently a three-month period, to pay either child or spousal support.
In Ontario, loss of employ or income reduction involuntarily may invoke the ability for the support payor to request reduced support payments, depending on the circumstances.
Undoubtedly COVID-19 and the fallout, including the emergency orders, would qualify as a reasonably unforeseen event capable of triggering a review of the existing support arrangements.
Indeed, and despite that ostensibly we remain in the early days of the pandemic, the 2008 recession was accepted by the Ontario Courts as such an event, so it stands to reason the coronavirus would fall into the same category.
At law, an existing child support obligation may be varied in the event of a, “change of circumstances” since the child support order was made.
Likewise, a spousal support order may be changed in the event a, “change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order.”
While the law has yet to tackle COVID-19 in this context, it seems relatively straightforward that the pandemic would, at least on a prima facie basis, adequately support a request to vary a child or spousal support payment.
What should you do, as either the payor or recipient of either child or spousal support?
Firstly, review your Court order or your separation agreement.
Check for any clause in the document, usually in the support-related part of the document, that refers to a “material change in circumstances”, or language comparable.
If that clause exists, it may give the support payor legal ability to request a variation of the existing support payments.
Be watchful, in your Order or agreement, for any other clause that may require the existing support arrangements to continue unless they are varied by an order of the Court, or an arbitrator.
If that clause exists, it is likely the case that the support payor may be required to continue payment temporarily, while seeking to vary the existing arrangements.
In any event, the Family Court is largely only operating with skeletal resources and is mostly only entertaining emergency or urgent matters generally. While the Family Court is gradually expanding its services during the pandemic, it remains strained.
As a result, the Family Court is very unlikely to be receptive to a slew of urgent motions regarding the payment of existing child and/or spousal support, unless it qualifies for urgency and the test applied by the Court.
Accordingly, it is very important for both the support payor and the recipient to review their existing Order, or agreement, to know the framework they agreed to initially and what, if any, clauses may apply in the circumstances.
It is usually always better for two former partners to agree on a resolution, at least temporarily, rather than escalating the matter to the Family Court, which is, of course, very expensive and, at least for now, delayed in its process.
If a support payor is a non-essential worker, or otherwise not working due to the virus, he or she should take reasonable steps to try to replace that income, including by applying for federal government-related benefits, such as the CERB or, if available, the Ontario government’s Emergency Assistance program, which is administered by most municipalities. Any steps taken should be recorded fully, as they may need to be used as evidence in future.