The COVID-19 pandemic has not only had a devastating effect on the health of many people, it has equally had a detrimental effect on global economies resulting in a dramatic reduction in the income of many businesses and individuals. Parents with an obligation to pay child support and contributing to their children’s’ s. 7 expenses, who suffered a substantial change in their income, sought with mixed success to renegotiate the totality of their spousal and child support obligations on a temporary or long-term basis with their former spouses.
The variation, of course, did not just impact payors of support, in many cases recipients of support similarly saw their pay cheque shrink or completely disappear. Provincial and Federal Government implemented a variety of programs to assist businesses and employees during this time of financial need.
Given that the determination of child and spousal support is based on annual income, an atmosphere of uncertainty about the long-term economic effect of the pandemic has made it impossible to predict whether the reduction in income is transitory or permanent. Payors with financial resources beyond their regular income are expected to use such resources to maintain financial stability in the lives of their children. Other households without such financial resources have had to temporarily adjust payments subject to ongoing review and potential payback of any deficiency. The actual financial impact of this pandemic on separated families might not be measurable for years to come. In the meanwhile, we will likely see an influx of cases for variation of child support that will further overwhelm a justice system that is already expected to be bursting at the seams when the Courts reopen.
The following is a small sample of the type of cases dealing with child support that we are seeing during the pandemic:
Misinformation about urgency in the motion:
The father’s ex parte motion without notice asking to be given custody of a 15-year-old boy and to stop making child support payments to the mother as a result of the child going to live with him was denied. The father, in his email to the trial coordinator, indicated that because of COVID-19 he needed “urgent relief” as a result of having “lost his wage”. No explanation was given beyond that information and no reason provided as to why the mother was not served. See Land v. Tudor,2020 ONSC 2163, 2020 CarswellOnt 4898 (S.C.J.).
Future income not measured by pre-pandemic income:
Justice Tobin, in circumstances where he was asked to determine the appropriate amount of child support, refused to use the father’s 2018 and 2019 income as the basis for a support order, indicating that while COVID-19 is ongoing, it is not appropriate to use historical information when, as a result of the pandemic, the father is no longer able to earn a similar amount of money. The court determined support on the basis of an income of $50,000 annually. See Browning v. Browning,2020 ONSC 2697, 2020 CarswellOnt 5998 (S.C.J.).
Motion to reduce child support dismissed for lack of evidentiary foundation.
The father brought an application to reduce child support as a result of a reduction in income, indicating that he had been receiving employment insurance since November 2019. He blamed his inability to obtain employment on the COVID-19 economic climate. Court found that the materials did not present the evidentiary foundation required for a decision to be made and, as such, the motion was dismissed. See Jumale v. Mahamed,2020 ONSC 2091, 2020 CarswellOnt 4537 (S.C.J.).
Relief requested not urgent:
The mother brought a motion to change child support and parenting terms set out in two final court orders. In the motion to change, the mother sought permissions to travel with the children without the father’s consent, an increase in the child support, enrollment in Our Family Wizard and application of RESP funds to post-secondary expenses.
The court found that none of the relief requested was urgent in that, due to the federal travel advisory recommendation, the issue with respect to travel was not urgent, the increase to the child support sought was minimal and at this point there was no child pursuing post-secondary studies. See Bruni v. Daunheimer-Bruni,2020 ONSC 2017, 2020 CarswellOnt 4486 (S.C.J.).