Canada lost nearly two million jobs in April, and surely lost many more in May. As we come out of the first phase of the COVID-19 shutdown, waves of financial devastation ripple outwards throughout the economy.
Courts across Canada are now beginning to hear support cases with more regularity, and unsurprisingly some of these cases involve individuals whose livelihoods have been upset, whether as a result of COVID-19 or otherwise, but remain bound to support orders calculated during better times.
Some courts—like the B.C. Supreme Court—now have a formalized process to deal with simple non-urgent cases in writing. Others—like certain regions of the Ontario Superior Court—are gradually expanding the range of cases that can be adjudicated to include less urgent matters.
In this context, courts are beginning to consider the circumstances under which a payor whose income has fallen—whether or not as a result of COVID-19—can apply to court to have his or her support obligation reduced.
In Lakhtakia v. Mehra, 2020 ONSC 2670, the Court seemed to set a high bar for payors who seek a reduction in support. In Lakhtakia, the husband claimed his income had fallen 42% as a result of the COVID-19 pandemic and sought a reduction in support. The husband did himself no favours: he had not properly disclosed his assets and income, and it turned out that his alleged loss in income was perhaps more speculative than genuine.
In any event, the Court disposed of his application on the grounds that it was not of sufficient urgency to warrant a hearing in the COVID-19 era. The husband’s circumstances were not “dire”, because he had savings he could access; real estate in Ontario and abroad; and had been paying the support amounts and mortgages. The court in Lakhtakia seems to suggest that if a payor has resources upon which he or she can draw, there will be no urgency to his or her application to reduce support.
But in a decision issued on the very same day (April 24, 2020), the court in Roberts v. Roberts, 2020 ONSC 2935, reached the opposite conclusion on similar facts. In Roberts, the husband (an anesthesiologist) had been paying support based on an annual income of $600,000 (representing monthly payments of $17,224). The husband developed a heart condition and could not continue working; his income fell to $104,000 per year in disability benefits.
The husband was granted an urgent hearing to have his obligation reduced. The court found that the likelihood that the husband would otherwise overpay support justified an “urgent” hearing. The wife’s lawyer argued the husband should continue to pay support and that he could dispose of investment assets to pay the ongoing amount (seemingly in line with the court’s conclusion in Lakhtakia). The court had none of it, noting that unless the husband’s obligation was reduced, he would probably overpay support, with the wife then being obliged to repay the overpayment.
Thus in Roberts the prospect of overpayment was sufficient to justify an urgent hearing, while in Lakhtakia the court imposed an implicit obligation to exhaust other financial assets before an urgent hearing could be concluded.
What about initial orders for support? At least in Ontario, the courts are ready and willing to grant orders for support on an urgent basis. Browning v. Browning, 2020 ONSC 2697, is an unexceptional cases made notable by its context. In Browning, the Court granted a hearing for an initial order for child support. The parties had three children, all of whom lived with the mother. The father had income of approximately $50,000 per year and had not paid child support since separation. The mother had been laid off from work and her sole income was the Canada Emergency Response Benefit amount of $2,000 per month. The court granted the mother’s application and ordered the father to pay $977 per month in basic child support.
See also L. B.-M. v. M.M., 2020 ONSC 2238, where the court ordered a husband to pay spousal support in the amount of $43,437 per month and child support for one child in the amount of $16,663. See also Lafond v. Blouin, 2020 ONSC 2396.
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