Changing Child Support Due to COVID-19
The ongoing COVID-19 pandemic has many parents wondering about their child support obligations or entitlements in light of layoffs, decreased earnings, and diminished childcare options. Do I still have to pay child support in light of the dramatic changes? Will I lose crucial payments from my former spouse?
As the crisis extends into 2021, family lawyers and Courts continue to evolve. Ultimately, though, unless a Court Order has been set aside or otherwise varied, current child support rulings must be followed and, if neglected, will be enforced.
How can I change my Court Order to reflect my reduced income?
While the Court has restricted its sittings, consent child support Orders continue to be processed. As such, the simplest and most efficient way to change a current Court Order would be by consent – your ex-partner or ex-spouse agreeing to the reduction of child support payments during COVID-19.
The first step: contact the other parent or their lawyer with ‘effective notice’ of the proposed change to child support. If effective notice is given, the court is more likely to withhold a payor’s accountability for any accumulated payment arrears. However, the Court will require a proof of a “material change in circumstances” when considering whether to vary a child support Order. Reduced annual income – demonstrated through Record of Employment, termination letter, or recent paystubs showing the decreased hours – is usually sufficient to establish a material change in circumstances.
If consent cannot be reached, timely resolution can still occur through mediation or mediation/arbitration. Remote mediations and arbitrations are still being conducted, parties attending by way of video conference. If one party does not agree to attend mediation or mediation/arbitration, though, the only option moving forward is Court.
The Courts remain limited in their hearings: restraining orders, child welfare issues and other pressing matters determined on a case by case basis. Additionally included now is the enforcement of arbitration awards, the intent being to encourage attendance at arbitrations while the courts are limited by COVID-19.
What constitutes a “material change in circumstances”?
Typically, a reduction in annual income is sufficient proof of a material change in circumstances to alter child support. The difficulty in this second wave of the pandemic is that there continues to be many unknowns about the economic recovery, ongoing emergency support availability, and other financial implications that may yet be on the horizon.
The Supreme Court of Canada defines a material change in circumstances as “substantial, continuing, and if known at the time, would likely have resulted in a different Order”. If a change in income is minimal or temporary, it would likely not meet the threshold for variation. The weeks and months to come in the current pandemic, though, still hold a great deal of uncertainty, so it may be challenging for a payor to know whether a situation is substantial and continuing. It is likely that if a person remains without a job or laid off, material change in circumstances would be proven and child support paid decreased.
What can I do if I’m concerned about my ability to pay upcoming child support?
It is imperative that you notify the recipient of your changed income right away and attempt to reach an agreement on how to vary child support. Notwithstanding notification, every effort should be made to pay on time and to pay in whole or as much as possible, given the Court often finds child support payments paramount to other payments, creditors, or expenses.
Assistance is still available to families in the form of mortgage deferrals, emergency funding, employment insurance, student loan deferrals, and utility payment freezes. If a party paying child support claims they have no way to pay, it is likely the Court would assess whether they had availed themselves of these help resources. If you are concerned about upcoming payments, contact the Maintenance Enforcement Program as soon as possible to discuss a temporary arrangement.
For more information or assistance changing child support orders, contact the Legal Navigator at Coach My Case for your free consultation. Alternatively, try our free Child Support Calculator to help determine the cost of your payments anywhere in Canada.