Spousal Support and Child Support During the Covid-19 Coronavirus Pandemic

Support Obligations:

In Ontario, if there is a court order requiring you to pay child or spousal support, you cannot stop paying support, even if you have lost your job.

Regardless of Covid-19, the court expects a support payor to continue to pay support until and unless they get a further court order changing their support obligations. If you do not pay, or do not pay the full amount, you will accrue arrears. Said another way, any support amounts you don’t pay become a debt that you will have to pay later, usually with interest. 

How to Get a Court Order Changing Support Obligations? 

In Ontario, to get a court order changing your support obligations, you must bring a motion, called a “motion to change”. Unfortunately, so far during Covid-19 (from March 2020 through approximately July 2020) the courts are not yet hearing motions to change child and spousal support.

Initially, during Covid-19, the courts only heard urgent motions such as motions for restraining orders or for orders for a non-custodial parent to return a child to the custodial parent.

The courts do not consider motions to change support obligations to be urgent. To some extent, the courts and larger society take the position that a support payor knows or ought to know the financial obligations before them and so, should be planning, saving, and anticipating making payments regardless of temporary ups and downs in life and in the economy. Also, just because one parent or former spouse loses a job, doesn’t mean the recipient stops having needs (for example, the child still requires shelter, food, clothes and the like).

That said, however, the novel coronavirus pandemic is unprecedented. The court’s views on this are yet to be seen. As courthouses implement Covid-19 safety measures, and as more cases are heard by teleconference and videoconference, the courts are able to hear more cases, including non-urgent matters such as motions to change child support obligations.

What are my Options If I Can’t Pay During Covid-19?

1. Savings:

If you have savings, you may need to access your savings in order to pay support. Be careful – there can be tax consequences to withdrawing from a registered savings plan (like an RRSP or RRIF).

2. Sell Assets:

Another option may be to sell assets to generate cash. (Note: This is not legal advice! These are simply practical options to consider).

3. CERB, EI, or Other Benefits:

If you received the Canada Emergency Reponse Benefit (CERB), or Employment Insurance (EI), or similar government benefits during 2020 (for example, income under the Ontario Disability Support Program ODSP, or income through CPP disability), these are forms of income to you and can be used to pay toward your child and spousal support obligations. 

4. Make Arrangements with the Recipient, if Possible:

Unless there is a court order or an agreement preventing you from contacting the support recipient, you may want to contact the recipient to ask if they will agree to a temporary reduction in support payments. You might be able to negotiate a reduction with or without having to make up the balance upon your return to work.  Just note, the recipient is not required to agree to this and you should not pressure them to do so. 

Motion to Change:

As the courts start to accept motions to change, and if:

• You are still out of work; or
• You are making significantly less income upon your return to work, or
• You are unable to make full support payments (whether that is arrears that accumulated during Covid-19 or support going forward)

you may want to bring a motion to court seeking to change your support obligations.

A motion to change may result in you being able to reduce the support payments, given that Covid-19 wasn’t anyone’s fault. However, you will need to show the court your new income, that you are not able to earn what you previously earned, that you attempted to return to work once possible to do so, or that you attempted to secure other employment if necessary.

Family Responsibility Office (FRO):

Once you have returned to work (or found a new job), or once you get a court order changing your support obligations, you may want to contact FRO to set up a payment schedule and address any other matters with FRO (for example, you will need to provide FRO your new employment information if you start a new job). This will help ensure a smoother return to “normal”.