Toronto Star

Spousal, child support plans complicate­d by lockdown

While CERB funds can’t be garnished, unemployme­nt insurance is fair game

- ELAINE SMITH

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.”

 ?? DREAMSTIME ?? Support payments approved by court order require court approval to change them, something that may be too expensive to contemplat­e when financial circumstan­ces have become temporaril­y challengin­g.
DREAMSTIME Support payments approved by court order require court approval to change them, something that may be too expensive to contemplat­e when financial circumstan­ces have become temporaril­y challengin­g.

Newspapers in English

Newspapers from Canada