There are few things in life that are certain, with the exception of death, taxes and the obligation to pay child support. While the government is shutting down non-essential public life and announcing a deferral of taxes (along with a raft of credits and deductions), it has so far said nothing about child support.
That is so despite immediate and obvious changes in the economy. Last week (the week of March 16-20), roughly 500,000 Canadians sought unemployment benefits. I fully expect more and greater job losses over the coming weeks.
Many of those put out of work have obligations to pay child or spousal support. In ordinary circumstances, the court expects payors who have lost a job or otherwise suffered a significant loss of income to go to court to seek a “variation” (or change) in the amount of child support he or she is paying. This is an awkward solution at the best of times, as the newly unemployed payor is often in no financial position to retain a lawyer to pursue a reduction.
COVID-19 has shuttered B.C.’s court rooms. As of March 18, 2020, the B.C. Provincial Court, Supreme Court, and Court of Appeal have all shut their doors to anything but the most urgent of cases, cases where life or liberty is at issue. Child support is not that kind of case. As it stands, there is no way of changing child support orders.
Where does that leave payors? In a potentially impossible position. The court has been clear that a payor cannot prefer his or her other financial needs to a child support order. This means that if your choice is to pay your rent, buy groceries or pay for other essentials, or to pay child support, you must pay child support first.
That policy makes sense in a world where there is an ability to seek a change in child support. In a post-corona virus world where a variation is impossible, this policy may not be sound. For example:
1. What if a payor is facing homelessness or cannot feed himself or herself if child support is paid? From a public health perspective, it does not make sense to force a payor out on the street in order to ensure child support is being paid.
2. What if the payor has to choose between staying home with corona-virus symptoms or going to work to generate money for child support? As child support is a court-ordered obligation, he or she may be legally required to attend work unless a law is passed prohibiting it.
3. What if the payor has a “shared parenting” order (i.e. has parenting time with a child at least 40% of the time)? It will make no sense to leave the paying household in destitution.
4. What if the payor has a fixed obligation to pay for daycare, hockey, and the like, but those have all been cancelled? A payor should not have to render himself or herself destitute to pay for expenses that are not actually being incurred.
5. Will a payor’s receipt of COVID-19 benefits be attachable by government child support enforcement agencies? If so, where will that leave payors who have no income and no ability to receive benefits?
So what should you do if you have suffered a COVID-19 job loss and have an ongoing child support obligation?
1. Find out the exact status of your child support obligation. If your obligation is set out in an order or in an agreement that has been filed with the court, your obligation to pay is in the nature of a court order, and as such, failure to pay will be a contempt of court. If your obligation is set out in an agreement that has not been filed with the court, breaching that obligation will be a breach of contract (and not to be encouraged), but at least will not be a contempt of court.
2. Determine whether your obligation to pay child support is being enforced by the Family Maintenance Enforcement Program (“FMEP”). FMEP is a government-funded agency that collects and distributes child support on behalf of parents in B.C. FMEP acts essentially as a collection agency and has the ability to take various enforcement steps (including seizure of tax returns, drivers’ licenses, and passports) as well as garnishment of accounts and wages. FMEP sometimes gives payor spouses some latitude where they cannot meet their obligations for reasons beyond their control, especially where the payor intends to apply to change an order.
3. If your obligation is being enforced by FMEP, you should contact FMEP immediately to let them know. FMEP has reduced their staffing levels, and likely the best way of reaching them is via the web account. FMEP has stated that:
If you are a payor, we acknowledge you may have difficulty paying your full amount of maintenance that is due. You are, however, still required to pay the maintenance owing under your order or agreement. If you are unable to make full payments it is very important that you contact us by signing into your web account and sending a web message.
4. Whether or not your obligation is being enforced by FMEP, you should let the recipient know of the circumstances and what you are able to do to continue to pay child support. Not only is it important for the recipient to know about your circumstances so that he or she can make their own plans, it is also important to give notice of your change in circumstances as soon as possible. If you have given notice of your change of circumstances, a court in a future variation hearing may make a reduction in child support “retroactive” to the date of notice. This could allow (but will not guarantee) that you will recapture some of the overpaid child support.
5. If possible, attempt to reach agreement with the recipient on a reduced amount of child support. Whether or not your obligation is based on a court order, spouses can agree on a different amount of child support. Many parents are willing and able to work with each other in these difficult times.
6. Gather your financial documents. At some point, either the courts will reopen generally or will provide a mechanism to have less urgent matters heard. For example, the court might allow hearings by video conference or telephone. It might also make sense for the court to permit an expedited and summary process for the hearing of child support matters. At that point, you will need to promptly seek relief from the court. In order to do so, you will want to have your financial documents in order. This typically means your last three years of tax returns and notices of assessment. If you have been laid off, this will mean your record of employment and records of any benefits received. If you have not been laid off but have reduced hours, your recent paystubs will be important.
7. Be patient! This is a rapidly evolving situation and a solution of some kind may be in the offing.
Of course, parents counting on child support are also in a difficult place. They too may have suffered job loss and are struggling to survive on limited income, and the loss of an expected support payment will come as a “double-whammy”. Further, just as it is impossible to take any steps to vary child support at present, it also appears impossible to take any enforcement steps to collect child support.
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