Child Support Obligations During COVID-19
In an article released by the Globe and Mail recently, we predicted that the next big wave of family law disputes arising from the COVID-19 pandemic would likely be support payments. Now with the Government of Canada’s unemployment portal officially open and an estimated 3.18 million applicants thus far, it is clear that COVID-19 is plaguing finances and may have an effect on support obligations.
As support payors suffer a loss of income, support obligations may be subject to variation. As we have examined in recent posts how COVID-19’s unprecedented situation has warranted the Courts to deem certain matters urgent. However, due to the present economic uncertainty – and the Government’s efforts to bridge the gap – it is unknown at this time how much weight a change in income brought on by COVID-19 will be considered urgent with respect to support obligations.
For child support, the first thing to keep in mind is what the custody is arrangement is. To refresh, the Federal Child Support Guidelines identify:
8 Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.
9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
For a variation in support obligations to be granted there must a ‘change in circumstances’ since the creation of the current obligations. Child support payments typically adjust each year in accordance with the child support guidelines and the payor’s income. The Federal Guidelines indicate:
Circumstances for variation
14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
From a case law perspective, a precedent we may see come to the fore in matters dealing with child support in light of COVID-19 is Drygala v. Pauli which deals with intentional underemployment; an issue that may need to be clarified in the context of COVID-19’s social distancing protocol.
Section 19 of the Federal Child Support Guidelines state:
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
- the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse
In Drygala v. Pauli, the Court found that in order to find intentional underemployment and impute income to a parent there need not be intent to evade child support obligations but rather the lack of pursuit to earn what they are capable of earning. Therefore in the event that the Court finds a parent has intentionally been earning less than what they are capable of earning due to COVID-19, they may impute income and alter child support obligations.
In light of the Court’s recent decisions with respect to access and custody of the children during the COVID-19 pandemic, it is unknown at this point if the same will follow with respect to child support, or if a new precedent will emerge within this unprecedented situation.