How Do I Change Child Support If I Lost My Job Due To Covid-19?
Camille Boyer, Calgary Family Lawyer
These unprecedented times have many parents wondering about their ongoing child support obligations or entitlements in light of mass layoffs, decreased earnings, and lost childcare options. Further complicating these significant and pressing concerns is the recent announcement suspending sittings from the Alberta Courts. Many separated parents are likely wondering if they still have to pay the child support in their Court Order in light of a dramatic change in income due to the COVID-19 pandemic. Alternatively, parents who rely on their support payments from the other parent each month may be worried about losing that source of income.
As the COVID-19 pandemic evolves, family lawyers and Courts continue to evolve as well. Each day brings further unprecedented changes – border closures, stay at home Orders, and social distancing guidelines. Ultimately, though, it is important to be aware that unless an Order has been set aside or otherwise varied, a current child support Court Order remains an Order of the Court which must be followed. Further, the Alberta Maintenance Enforcement Program continues to have authority to enforce support Orders.
How can I change my Court Order to reflect my newly reduced income?
While the Court has restricted its sittings, consent child support Orders continue to be processed. This means that the simplest and most efficient way to change a current Court Order would be by consent. Of course, this means that your ex-partner or ex-spouse would have to agree to the reduction of child support payments during COVID-19.
The first step would be to contact the other parent or their lawyer with the proposed change to child support. This is important, as a payor should ensure they have given “effective notice” to the recipient that they wish to reduce their support. It would be critical to prove this, down the road, if a payor incurred significant arrears since giving such notice. If effective notice is given to reduce child support, the court will be more likely not to hold the person paying child support accountable for arrears that have accumulated because they did not pay in accordance with a court order. 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 is usually sufficient to establish a material change in circumstances.
Therefore, when providing notice to the other parent, it is important to include proof of the lost or reduced income, such as a Record of Employment, termination letter, or recent paystubs showing the decreased hours. If unable to reach consent on the issue, it could still be dealt with expediently through mediation or mediation/arbitration. Remote mediations and arbitrations are still being conducted in in Alberta. In this process the parties attend by way of video conference. However, if the other parent does not agree to attend mediation or mediation/arbitration, at this time the only option is Court.
The Courts have limited their hearings to urgent matters only at this time and have stated that this includes restraining orders, child welfare issues and other pressing matters determined on a case by case basis. Included in this now is the enforcement of arbitration awards, in order to encourage people to attend arbitrations while the courts are limited by COVID-19. In order to determine if your case meets the test for urgency, a family lawyer should be contacted for advice.
What would constitute a “material change in circumstances”?
As set out above, the Court would typically find that a reduction in annual income is sufficient proof of a material change in circumstances to change child support. The difficulty, at this early stage in the COVID-19 pandemic, is that there are many unknowns about the economic climate, emergency supports available, and other financial implications that may arise.
The Supreme Court of Canada defines a material change in circumstances as a change that is “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, this would likely not meet the threshold for variation. The coming weeks and months hold a great deal of uncertainty, so it may be too early for a payor to know whether their current situation is, in fact, a change that is substantial and continuing. But it is likely that if a person has lost their job or is laid off they would be able to prove a material change in circumstances and decrease the child support paid.
Child support obligations should “fluctuate with the payor parent’s income”. Therefore, when a payor parent’s income decreases, this should logically result in a reduction to the amount of support due.
What can I do if I am worried about my ability to pay my upcoming child support payment?
It is imperative that if you are concerned about your ability to pay child support you give notice to the recipient of your changed income right away and attempt to reach an agreement on how to vary child support. Further, every effort should be made to pay on time, and to pay in whole or as much as possible. The Court would likely find that child support payments are paramount to other payments, creditors, or expenses.
There are also many resources available to families which have recently been announced by the government and by Canadian banks, which include mortgage deferrals,emergency funding,employment insurance, student loan deferrals, and utility payment freezes. If someone paying child support intends to claim they had no way to pay, it is likely that the Court would assess whether they had availed themselves of the available financial relief.
In addition, the Alberta Maintenance Enforcement Program (MEP) has announced that payors of support may be eligible for a temporary decrease to their payment amounts. This applies to payors looking for assistance during the pandemic due to: loss of income as a result of COVID-19 diagnosis, self-isolation, loss of job (or reduced hours), or the impact of childcare/school closures. People who are concerned about their upcoming payments are urged to contact the Maintenance Enforcement Program as soon as possible to discuss a temporary child support payment arrangement. Importantly, though, such temporary relief is not a substitute for varying a Court Order. Arrears will still be accumulated as MEP cannot change a court order.
For more information or assistance with child support orders and how to change them contact the Calgary family lawyers at Crossroads law for your free consultation, or try our free Child Support Calculator to help determine what your child support payments should be anywhere in Canada.