Spousal, child support plans complicated by lockdown
While CERB funds can’t be garnished, unemployment insurance is fair game
Toronto family lawyer Richard Peticca was in the midst of working with a client on a separation agreement when COVID-19 began its run through North America. Suddenly, his client, who worked in the service industry, was out of a job.
“We were looking at doing the agreement and she was considering holding off on (asking for) spousal support, but with the layoff, she’s reconsidering,” said Peticca, who works for Shulman & Partners LLP.
His client isn’t alone in facing changed circumstances that may necessitate reduced support payments.
Data from the Canada Revenue Agency show that, since March 15, the Canada Revenue Service (CRA) has received close to 11 million applications for its Canada Emergency Relief Benefit (CERB), a monthly payment targeted at workers who have been laid off or lost their source of income due to COVID-19.
“We’ve had an increase in calls over the last couple of months from people who aren’t receiving the appropriate support or who aren’t able to make their full support payments,” Peticca said.
Support payments approved by court order require court approval to change them, something that may be too expensive to contemplate when temporary reduced financial circumstances are the issue.
In addition, Ontario’s court sessions are currently suspended, although judges are hearing urgent matters by teleconference.
A request for a temporary change in support payments may not meet the court’s definition of urgent, however, and could be delayed until regular court sessions resume.
But children are a court priority and “if you put someone in a dire situation, the court will have to respond,” Peticca said.
People who are making court-ordered support payments may have their wages automatically garnished. Ontario’s Family Responsibility Office (FRO) oversees the collection of these payments. The office is not allowed to garnish Canada Emergency Response Benefits, but unemployment insurance is fair game.
“We understand that these are unprecedented times and are working
with both payors and recipients to determine the best possible outcome in each individual situation, within the parameters of the Family Responsibility Office’s (FRO) statutory mandate,” a spokesperson said via email. “We encourage support payors to connect with FRO in cases where their circumstances have changed. While FRO will do their best to work with them to identify alternative payment arrangements, it is the courts who can change the terms of support orders.”
Not every support situation is the result of a court order; couples may have formal separation agreements arranged through lawyers, or they may simply have agreed upon support informally. With or without court input, there is no onesize-fits-all solution, says family lawyer Linda Bronicheski, the principal at Beaches Family Law & Mediation in Toronto.
“Every family is so different and their financial problems are different,” said Bronicheski. “Some people may choose to dip into their savings (to make support payments), but, for others, it’s not an option.
“Both recipients and payors may have financial resources that are stretched to the limit and no savings to fall back on.”
She suggests that prior to considering any change in payments, “where the loss of income is genuine, you should be applying for all possible aid.”
The first step in adjusting any support agreement is opening the lines of communication with your ex-spouse, say both Peticca and Bronicheski.
“You have to make a general effort to comply with an agreement, but you should open up a discussion with your spouse to see if it’s possible to temporarily negotiate a lesser amount and revert back to the original payments when things go back to normal,” Peticca said.
Such communication should also include an exchange of current income information to ensure both parties understand the circumstances.
“You can pick up the phone or send an email,” Bronicheski said. “Exchanging income information is really a key to moving forward, because a lot of separated spouses are inherently distrustful of each other, so the paperwork goes a long way in explaining that the situation is genuine.”
Child support, for example, is generally based on income, and the province offers a calculator that can help both parties understand what an appropriate temporary change might be in dollar terms.
“People may try to negotiate a creative, temporary resolution,” Peticca said. “Child support is prioritized by legislation, so the payor might try to meet that and work out an accommodation on spousal support, for example.”
Each spouse should consider talking to a lawyer to help them review any temporary agreement they make or to assist them in negotiating a temporary agreement. It need not be an adversarial process. There are lawyers who practise collaborative law, which is a good fit for clients who are willing to consider the other party’s perspective; their practices also include access to financial and mental health professionals . There are also mediators that serve as impartial professionals who sit down with both parties to work through the issues important in reaching a settlement.
“We recognize that everyone is going through a difficult time with uncertainty across the board,” Peticca said. “We are here to help parties bridge any communications gap and put together a resolution they both can live with.”