COVID-19 & Family Support: Obligated To Pay If Laid Off?
The next big wave of family law disputes is likely to be over support payments. With COVID-19, many Canadians have lost their job. The CRA, for instance, has received over 15 million applications for CERB so far. This means that many support recipients have not received child and/or spousal support. Furthermore, support payors will likely seek to reduce the amount they are paying if their financial situation has changed due to the pandemic.
We have compiled the following list of Frequently Asked Questions and Answers on support payments to help you understand your rights. Should you have any particular queries, do not hesitate to contact us for a free consultation with one of our family lawyers.
Is changing support payments an “urgent” matter?
Currently, courts are only hearing “urgent” matters, which usually does not include support issues. If someone does have a financial issue concerning support, the circumstances must be “dire” in order to meet the urgency criteria. For example, if a child’s basic needs are not being met due to a lack of child support payments.
What is required to change your support obligations?
Support payments are usually laid out in separation agreements or court orders. They can be varied by either party if there is a material change in circumstances.
A material change in circumstances is defined as “substantial, continuing, and if known at the time [of the order or agreement], would likely have resulted in a different Order.” If the change in the circumstances is insignificant or temporary, this likely will not meet the threshold to alter the agreement or court order.
Is a COVID-19 layoff a “material change” in circumstances?
Would losing your job due to COVID-19 constitute a material change in circumstances? What if you were able to get another job in the midst of the pandemic but it pays substantially less? There are a lot of unknowns with the pandemic, which makes answering these questions difficult.
For the most part, if a person lost their job, they can claim a material change in circumstances and apply to vary the support payments. The “onus” (or responsibility) is on the person seeking to alter the payments to prove the change is material and that the layoff was unintentional and beyond their control.
If the support payor’s new job pays significantly less, they may also be able to prove a material change in circumstances. This was the case in Krause v Zadow, where the support payor got a new job that paid much less and there was uncertainty as to his long-term employment stability. More recently, in Browning v Browning, a judge determined that in light of an income reduction caused by COVID-19, it would not be appropriate to calculate child support based on the applicant’s last two years’ income.
It is important to read and understand your court order or separation agreement. In some cases, the threshold is not whether there has been a material change. Rather, it could include support as non-variable unless there has been a “catastrophic change in circumstances.” Determining whether a COVID-19 layoff is a “catastrophic change” will likely be a source of contention for many parties going forwards.
What can you do while court action remains limited?
Since courts are mostly not hearing support disputes, it will be awhile until support arrangements can officially change. People are still expected to fulfill their current support obligations. Once courts resume and a motion to change is brought forward, a judge will look at the person’s good faith efforts in meeting their support payments. This includes what steps they took to get a new job or finding other means to pay support.
With this in mind, there are several ways a support payor can mitigate their losses. They can apply to the Federal government for CERB or Employment Insurance (EI). The Family Responsibility Office (FRO) is also an option. The FRO can work with you to identify alternative payment arrangements. If possible, a support payor can try contacting their support recipient and explain their situation and work out a temporary solution.
As experienced family lawyers, we can help determine if your matter would be considered “urgent” by the courts or, if not, what steps you might be able to take in the meantime if you are struggling to keep up with your support obligations.
Conversely, if you are on the receiving end and your partner has used the pandemic as an excuse to withhold payment, we can help determine what steps you can take now to enforce your partner’s support obligations.
You can reach our office at 905-366-0202 or contact us through our website here.
 Government of Canada, “Canada Emergency Response Benefit Statistics” (June 3rd, 2020), online: <https://www.canada.ca/en/services/benefits/ei/claims-report.html>.
 Ontario Court of Justice, “COVID-19 Pandemic – Definitions of Urgent Matters” (June 3rd, 2020), online: <https://www.ontariocourts.ca/ocj/covid-19/definitions-urgent-matters/>.
 Laurie H. Pawlitza, “Can I get divorced during the COVID-19 pandemic and more burning family law questions” (June 3rd, 2020), online: Financial Post < https://business.financialpost.com/personal-finance/can-i-get-divorced-during-the-covid-19-pandemic-and-more-burning-family-law-questions>.
 Willick v Willick,  3 SCR 670.
 Krause v Zadow, 2014 ONCJ 475.
 Browning v Browning, 2020 ONSC 2697.