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| Leena Yousefi |
We have all heard that given COVID-19, the rate of divorce would spike in Canada. But what we may not be paying as much attention to are the potential hundreds of thousands of individuals who are now stuck with pre-COVID-19 child and spousal support orders they can no longer comply with because they have lost their jobs.
Tragedy of COVID-19-induced lack of support
Family lawyers these days are faced with inquiries from people who are struggling to balance the devastating impact of COVID-19 on their employment and income with their obligation to support their ex-spouse or children.
In the aftermath of the first wave of the pandemic, an increasing number of recipients are left with little to no child or spousal support. Since in most cases such support is their only source of income, they are unable to meet their day-to-day expenses and that of their children. These individuals include stay-at-home parents, disabled spouses or spouses who have lost their jobs due to COVID-19 and have no savings.
Just as tragic are the numerous inquiries from payors who have court orders or agreements that state they need to pay based on their pre-COVID-19 incomes, but simply have no means to do so as they no longer have such incomes.
To add to an already stressful situation, B.C.’s Family Maintenance and Enforcement Program (FMEP) is mandated to enforce support orders or agreements if the payor does not pay. Regardless of the payor’s current situation, including COVID-19-induced unemployment, the FMEP is still able to confiscate passports, driver’s licences or garnish the bank accounts of a non-paying payor.
The only way to stop enforcement is to change the agreement or court order relating to support through the courts. But how is the payor supposed to get to the court when the courts are mostly closed and there are no funds to afford a lawyer to help?
Challenge in changing support orders through the courts
So far the B.C. courts have not considered support issues as urgent enough to be heard through their limited operations during COVID-19. Recently, they have expanded to hear some non-urgent issues but given the backlog we are facing due to thousands of matters being adjourned during the pandemic, and the complexity of some income and support issues, most individuals will likely have to wait months if not years to have their day in court to stop FMEP from enforcing pre-COVID-19 support orders. Until then, they will be stuck with a pre-COVID-19 agreement or order that no longer reflects their reality.
Current legislation is of little help
The stress of situations similar to the above and the inability to resolve them has in the past caused some individuals to commit suicide. The thought of what may happen now given the financial devastation COVID-19 has caused can be truly scary.
COVID-19’s effects also present a unique challenge to the core of the legislation relating to child and spousal support. That is, even if the payors get their day in court after jumping through the above hoops, they will still have to meet a stringent legal test that mandates that loss or reduction of income must be a long lasting change; unless it is, the pre-COVID-19 agreement or order will not be changed regardless of the payor’s current situation. In other words, a temporary change will not be sufficient to change an order or agreement.
The challenge is in proving whether COVID-19-induced unemployment is temporary or permanent. To argue either way is akin to looking through a crystal ball relating to a pandemic we have not experienced in almost 100 years. Our best guess is just as good as the next person’s.
Could the government help?
The question then becomes this: in a country where the government immediately took action and started giving out billions of dollars in funding to individuals and businesses to help them during COVID-19, why are some payors and recipients of support left to fend for themselves or their children?
Children or stay-at-home parents are not eligible for the Canada Emergency Response Benefit (CERB) (unless the parents lost their job during COVID-19). Payors who lose their jobs will receive a maximum of $2,000 per month in taxable benefits, which would barely cover their own expenses. Many payors are obligated to pay hundreds or thousands of tax-free dollars for child support and have no savings or income to do so.
Perhaps a logical, but not perfect, way of addressing the above noted situations would be for the government to put a temporary pause on enforcing support orders on those who have lost their jobs due to COVID-19, so that they can have a chance at getting back on their feet without the stress of potentially having their driver’s licences taken away or being incarcerated. Or the government could expand the definition of who is eligible to obtain CERB to include those who are no longer receiving child or spousal support due to their ex-partner’s loss of employment or income.
Suggestions for lawyers faced with COVID-19-induced support issues
Until then, a suggestion for family lawyers faced with helping individuals who live paycheque to paycheque and cannot pay support due to COVID-19 would be as follows:
- To argue a long lasting change that would allow the courts to reduce child or spousal support, show that the only way to continue complying with such order would be for the payor to incur debt.
- For people who live paycheque to paycheque, taking out debt to pay for pre-COVID-19 support orders would mean that the debt would only compound and increase because of interest payments and the inability of the debtor to service same.
- The inability to repay such debt for a significant amount of time would constitute a material change as per Child and Spousal Support Guidelines.
For all other payors who have savings, capital or a temporary change of income, under our current laws and regardless of COVID-19, chances of reducing pre-COVID-19 support payments would be slim … to none.
Leena Yousefi is a family lawyer and the CEO of YLaw, a boutique family firm with two offices in beautiful British Columbia.
Photo credit / Likica83 ISTOCKPHOTO.COM
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