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COVID-19 AND CHILD SUPPORT IN ONTARIO

Let us examine the issue of how COVID-19 is impacting child support (and spousal support) claims in Ontario.

ENFORCEMENT OF SUPPORT ORDERS

The Ontario Family Responsibility Office enforces support orders and agreements. It has indicated that with respect to enforcement of support orders and agreements during COVID-19 that it will have an open ear. Their website states:

Support payors are expected to continue to make payments as per their court order. Inform us as soon as possible if your circumstances change due to the COVID-19 outbreak, and we will work with you. For example, contact us if your place of work closes or you are laid off due to the COVID-19 outbreak.

The website also says that the FRO will not garnish the Canada Emergency Response Benefit but will continue to take from E.I. and HST credits. They have cancelled all Driver's License Suspension Notices. They warn that they will consider each case individually re whether or not to start driver's license suspension again. It is therefore a good idea to stay in touch with your enforcement agent and show genuine commitment to doing whatever you can to pay as much as you can during the crisis period.

GENERAL THEMES OF COVID-19 CASES

The COVID-19 caselaw says that you must pay your child support order just as existing parenting arrangements are presumptively to also remain in place. But for both issues there are circumstances where it might just be impossible and/or even dangerous to blindly adhere to existing orders and agreements. Still, you cannot engage in self-help. You need either the written agreement of the other parent, sometimes the agreement of the FRO, or you need a court order.

Let's see how people have faired in Ontario's courts over support issues.

Urgency is required to gain entry to a judge.

LOOK AT THE COURT DIRECTIVES FIRST

The Ontario Superior Court of Justice defines urgency in part to include:

Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:

dire issues regarding the parties' financial circumstances including for example the need for a non-depletion order;

As of the writing of this blog post, only the Toronto Region SCJ has expanded the scope of financial cases to be heard as follows:

Urgent family law events as determined by and at the discretion of the presiding judge, or events that are required to be heard by statute will be heard during this emergency period, including but not limited to:

issues regarding the financial stability of the family unit, including for example support or the need for a non-depletion order;

In the Northwest Region, any motion may proceed (without a case conference) in writing if the parties agree. Other regions have not formally broadened the scope of urgent family law matters. [But always check the Directives from the Regions. Things can change.]

The Ontario Court of Justice does not define urgent family matters to specifically include financial matters (other than refraining motions under the Family Responsibility and Support Arrears Enforcement Act), but rather simply indicates that "Urgent family court matters" include various types of cases. The list given is not exhaustive.

URGENCY

A significant income reduction might qualify as "urgent". But you must prove that income reduction convincingly.

Browning v. Browning: This case gave something for both parents. Where a support recipient loses her employment, she can apply on an urgent basis. Where a support payor has demonstrably reduced income, his previous two years won't count.

The support recipient mother moved for child support. The triage judge found the motion to be presumptively urgent. Why was the matter urgent according to the mother? She was laid off from her employment where she had earned $37,000 per year. She had not received the Canada Child Benefit. The judge found: "The issue of child support is immediate, serious and material." The father's income had reduced because of Covid-19; therefore, it would not be appropriate to assess support based upon his last two years' income.

Roberts v. Roberts: A huge reduction in income by the support payor will at least presumptively be considered "urgent".

Under a 2014 spousal support order, the husband was obliged to pay to the wife spousal support of $17,224 per month. We do not learn from this decision what his 2013/14 income was. But the judge does tell us that his 2018 income was $634,747. The husband had to stop work due to serious medical issues and was receiving $104,400 per year by disability insurance payments. The judge determined that such a reduction qualified as a "dire issue regarding the parties' financial circumstances".

Mohamed v. Osman: If you pay nothing, you will be required to pay something, especially where you don't bother to defend the case.

The court made a temporary order under the Interjurisdictional Support Orders Act where the payor father had not filed responding materials by the March 2nd deadline and the recipient mother had not received any child support to date. Paying nothing is not generally speaking a great idea.

NO URGENCY

Then there are the cases where the moving party will not succeed at all.

Lakhtakia v. Mehra: The father payor sought a reduction of child support and elimination of spousal support, issues that he claimed were urgent. This case is a great example of how not to establish urgency when you claim that you have a 42% reduction in your income. The case had a long and sordid history with allegations that the father had not complied with a previous financial disclosure order. Don't expect sympathy from the court where there is even a whiff of previous failure to disclose.

The father had been paying $2,086 a month for child and $3,197 a month for spousal support since the October 30, 2017 order. To support his claim of reduced income, he produced a letter from his "employer". But he failed to mention that he was the 90% controlling shareholder in his "employer" company. Lesson #2: Lose your motion by being less than frank with the court.

The respondent failed to explain how COVID-19 had impacted his business or how quickly it might recover. Lesson #3: Lose your motion by failing to provide sufficient detail of current and prospective outlook.

Justice Horkins correctly observed:

[17] I conclude that this is not an urgent motion. There is nothing "dire" about the respondent's financial circumstances. While I appreciate that COVID-19 has created financial challenges for many people, the limited resources of the court during this pandemic must be reserved for the most urgent cases, as the Notices to the Profession direct (Ribeiro v. Wright, 2020 ONSC 1829; Thomas v. Wohleber 2020 ONSC 1965).

A 42% income reduction might, in my view, constitute an urgent matter. But you have to lead the complete evidence in order to have a chance to really succeed. The father in Lakhtakia did not lead the necessary evidence and he was not frank with the court.

Sezin v.Sheikh: The issues may be important to the parties but they won't necessarily be deemed to be "urgent" where you don't even try to secure a case conference date.

The father wanted access to a newborn. The mother wanted child support. The issue was whether these motions were "urgent". Justice Zisman of the Ontario Court of Justice decided that they were not urgent. Rather, there should have been a case conference first:

[39] Although there is an immediate need for child support, before an urgent motion proceeds, an attempt should be made to resolve the support issues at a case conference.

[44] ... Although there is urgency in the mother obtaining a child support order, I find that this can be easily dealt with at a case conference.

The lesson here? Don't take anything for granted. Just as before COVID-19 we were obliged to try to secure a quick Case Conference date, some judges might be inclined to insist that we do the same during these exceptional times.

Fluet v. Arbarbanel: Master Kaufman was tasked with determining whether a proposed motion was "urgent". Four children lived with mom in the matrimonial home. Father simply stopped paying child support in January 2020 even though he had previously been paying between $1,606 and $1,846 per month in the previous year. He also was not contributing to special and extraordinary expenses. So far, it would have appeared to the casual observer that the father was going to suffer severe consequences for such behaviour.

But that did happen.

This case highlights that when you claim that your proposed motion qualifies as "urgent", don't forget that you have the burden of proof to demonstrate "urgency". The mother seems to have just assumed that she would succeed. And she did not succeed.

Master Kaufman noted that the mother's budget had expenses that would not apply right now. That point was surely relevant to the urgency issue although it is certainly irrelevant to any table child support calculation. Similarly, while the mother claimed she could not afford to pay the mortgage, she nonetheless had to prove "dire financial circumstances". Her evidence just did not make the grade on that account. The father claimed that he had been trying to get mother to the mediation table but she refused to talk until the father paid up all of the arrears that she claimed. A court cannot force you to attend mediation; however, if you appear unreasonable in that you failed to negotiate, then that's another matter altogether when the court comes to determine if your matter is "urgent" or not.

Appear to be unreasonable and you just might lose. The crowning point that I believe that went into nixing the motion as urgent was that the father immediately and quite wisely consented to pay $1,100 per month. The end result of course was that urgency was not established.

CONCLUSIONS

When we think of these urgent COVID-19 motions, we tend to focus on the division of parenting time, one parent failing to follow public health safety protocols, or one parent simply acting unilaterally to keep the kids without advance court approval. However, as I have discussed above, there are other cases that address spousal and child support issues.

Access to the courts for the time being may be restricted (and unreasonably so I would argue). But that does not mean that a worthy case with financial issues will not be heard and important relief secured from the court.

The key is to be knowledgeable about the published cases and be able to structure your facts wisely. You need to make the correct strategic decisions so that when you do apply for that "urgent" motion, you might just succeed.

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