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THE 3 C’S: HOW COVID-19, COURT CLOSURES, AND THE CERB, ARE IMPACTING CHILD SUPPORT

Since the onset of COVID-19, Ontario’s unemployment rate has climbed to 11.3%. Across the country, the numbers are even more staggering. In April 2020, Canada reported an unemployment rate of 13% (a 7.3% increase since the same time last year). It should therefore come as no surprise that this widespread job loss has caused some parents to default on their child support payments.  Families are caught between a proverbial rock and hard place: support recipients rely on child support to meet their basic needs (for example: rent, groceries) but presently, many support payors are unable to work and earn income for a variety of reasons, most of which are out of their control as large swaths of the economy have been shut down.  

So, now what? For support payors, the obligation to pay child support continues. If you have lost your employment or are earning less given global circumstances, it is your responsibility to reach out to the support recipient, disclose all relevant income information, and (hopefully) negotiate a support arrangement that makes sense in the circumstances for this interim period. 

For a number of reasons, negotiating an interim agreement may not be possible in every family (for example: if the payor is not willing to make any form of payment).  Before the onslaught of COVID-19, if  payors defaulted on child support, Ontario’s Family Responsibility Office (“FRO”) could take enforcement steps to collect arrears and enforce ongoing payments including garnishing a payor’s income or suspending a payor’s driver’s license. While the enforcement process was far from perfect, it did incentivize some payors to pay child support or face significant financial consequences. 

Unfortunately, with the shut-down of government offices and courthouses across the province, the FRO is not operating at full capacity, and for the time being it is not issuing notices to suspend payor’s driver’s licenses for failure to pay child support. For payors who receive the Canada Emergency Response Benefit (“CERB”), FRO is not garnishing the $500 weekly payment although they are continuing to garnish Employment Insurance and GST/HST payments. 

In some families, the ripple effects of COVID-19 mean that support recipients are not receiving any child support (for example: in cases where the payor’s only source of income is the CERB).  Without child support, parents are forced to make difficult decisions: “do I pay the rent or do I buy groceries?”  For some, there is no choice but to attend court and ask for the court to order the immediate payment of child support (or alternatively, to ask for the court to adjust an existing child support order to reflect a payor’s loss of income), but going to court is not so easy.  Family courts  are also operating at a reduced capacity and in many regions, limiting court appearances to only the most urgent of situations. While there has been an explosion of decisions addressing disputes regarding parenting schedules in the age of COVID-19, there has been considerably less discussion about the financial realities facing support recipients and payors. 

Recently, in Ade-Ajayi v. Ngure, the Honourable Madam Justice R.A. Wildman found the father’s motion seeking ongoing child support to be “urgent”. The children had been residing with the father since August 2014 but the father had not received any child support from the mother. Instead of collecting child support from the mother, the FRO continued to enforce a previous child support order (January 2013), which required the father to pay child support to the mother because the children had been living with her at the time of the order. 

As a result of FRO’s enforcement measures based on the earlier order, the mother continued to receive payments from the father’s federal garnishments including “an emergency Canada Child Benefit GST payment in April to alleviate economic hardship for the children” although the children did not reside with her. The father asked the mother to withdraw from FRO enforcement but she refused. As a result, the father was forced to bring a motion to address the ongoing garnishments. 

The Honourable Court ordered an immediate stay to ongoing enforcement against the father and required that “to extent that they are able to do so, the Family Responsibility Office is requested to return any payments collected since March 19, 2020.” 

In her concluding remarks, the Honourable Madame Justice R.A. Wildman offered the following caution to family law litigants:

First… the court expects people to accede to reasonable requests from the other side. Failure to do so impacts on the credibility of a litigant and will likely attract cost consequences, even if a party is self-represented. Although I am not making a cost order today, I am reserving the issue of costs of today’s proceedings to the judge at the settlement conference or final hearing. This matter has taken several hours today and should not have been necessary. It is hard to understand why Ms. Ngure would not, at the very least, consent to an order terminating Mr. Ade-Ajayi’s ongoing child support obligations during the time that the children have been living with him. Her failure to do so will likely attract a cost award, unless she has information to provide to the presiding judge to justify her lack of consent. In future, if reasonable requests such as this are made, she should consider trying to accommodate them, rather than risk a cost award by requiring Mr. Ade-Ajayi to incur further legal costs to obtain the requested order. [emphasis added]. 

Support recipients and payors alike should heed Her Honour’s warning. In these trying times, parents are expected to work together for the benefit of their children. If parents are unable to do so, they should anticipate that cost consequences will flow from their failure to take reasonable positions. 

About the Author

Megan O’Neill joined the firm in 2017 after completing her articles with Legal Aid Ontario. She works in all areas of family law.

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