Like in other jurisdictions in Canada, the COVID-19 pandemic has affected virtually every aspect of life in Ontario. New economic constraints have led to the inability for many to abide by court-mandated child and spousal support obligations. This problem is compounded by the reduced schedule for the Ontario courts that began on March 16, 2020. Since that time, courts have only heard urgent matters, which poses significant challenges for individuals seeking to vary support obligations.
What do the courts consider “urgent” in light of COVID-19 related protocols?
PreCOVID-19, the threshold for bringing an urgent motion was high. Courts often refer to Rosen v Rosen to determine whether a motion in family court is urgent. The Honourable Justice Wildman in Rosen stated that an urgent interlocutory motion contemplates issues such as abduction, threats of harm, and dire financial circumstances.
As a result of COVID-19, the threshold for bringing an urgent motion has become much higher. The Ontario Superior Court of Justice released a Notice to the Profession on March 15, 2020, announcing that until further notice, only the following urgent and emergency family matters shall be heard:
- requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
- urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
- dire issues regarding the parties’ financial circumstances, including, for example, the need for a non-depletion order; and
- in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
As described by the Honourable Justice Kurz in Thomas v Wohleber, the Notice suggests that only the most urgent matters will be heard until COVID-19related measures permit the courts to hear a broader range of proceedings. Justice Kurz held that to permit otherwise would overwhelm the court’s limited resources. Justice Kurz considered the Notice, in addition to the principles set out in Rosen, and created a concise set of guidelines to consider prior to bringing a motion on the basis of urgency. According to Justice Kurz, the following factors must exist to meet the Notice’s requirement:
- the concern must be immediate; that is, one that cannot await resolution at a later date;
- the concern must be serious in the sense that it significantly affects the health, safety or economic well-being of parties and/or their children;
- the concern must be definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical; and
- it must be one that has been clearly particularized in evidence and examples that describe the manner in which the concern reaches the level of urgency.
As a result, during the COVID-19 pandemic, it is likely that the majority of motions to vary support will be considered less urgent during this time.
How have Ontario family courts decided COVID-19 related support issues?
COVID-19 has had a dramatic effect on Canadian employment rates. Many parents with support obligations may have lost their jobs due to layoffs or business closures in recent months. This issue gives rise to questions about what happens with respect to an existing child or spousal support obligation during these trying times.
Given the suspension of regular court operations, the courts have only released a handful of relevant decisions dealing with matters related to support. Nevertheless, the decisions released to date provide some useful guidance with respect to the courts approach to support related issues.
In Jumale v Mahamed, the Honourable Madam Justice MacKinnon suggested that some motions to vary support obligations will surpass the urgency threshold, as provided in the Notice. According to Madam Justice MacKinnon, generally, an individual’s lay off due to COVID-19 could provide a compelling reason to temporarily reduce child support obligations. However, in Jumale, Madam Justice MacKinnon found that the father did not meet the urgency threshold and denied his request. Madam Justice MacKinnon held that the father’s income had not decreased or been discontinued as a result of the pandemic. Furthermore, she argued that given the father’s role as an IT Consultant, it could not be presumed that he would be unable to obtain any contract work during this time. Madam Justice MacKinnon held that to claim urgency in the reduction of his child support obligations, the father would have to establish his 2019 total income figure and to set out in detail all of his efforts to obtain replacement work since the date of his lay off and on an ongoing basis. The father failed to do so.
In Lyons v Lyons, the Honourable Madam Justice Williams acknowledged the impact that COVID-19 may have on future incomes, at least in the short term. In this case, the father brought a motion for a reduction in child support, among other things, prior to the outbreak of the COVID-19 pandemic. Madam Justice Williams made an order for child support despite the potential for future income deficiencies. Rather than suggesting that the parties bring a motion to address any future income reduction, Madam Justice Williams urged the parties to communicate and cooperate to make the necessary adjustments for support on their own.
In Roberts v. Roberts, the Honourable Madam Justice Hebner determined that the respondent’s motion to reduce his monthly spousal support obligation was urgent. Prior to him falling seriously ill during the summer of 2019, the respondent earned over $630,000 annually. Subsequently, the respondent had to stop work due to serious medical issues. He began receiving just over $100,000 in disability insurance payments per year. In this decision, Madam Justice Hebner held that the reduction in income was not just a temporary pandemic related reduction. The respondent’s income reduction began prior to COVID-19 and would likely continue following COVID-19. According to Madam Justice Hebner, the respondent would be unable to pay the current court ordered level of support without significantly depleting his retirement investments. As such, Madam Justice Hebner reduced the spousal support obligation on an interim basis.
What conclusions can be drawn about support related issues during COVID-19?
The review of the COVID-19 case law indicates that an individual is required to pay support in accordance with an existing court order or agreement. However, there are circumstances where it may be impossible to continue making these payments. The courts have held that in these situations, one must not engage in self-help. In other words, in order to get a change in support, the parties either need a written agreement or a court order stating same.
Parties are encouraged to communicate with one another regarding temporary changes to spousal or child support payments before expending limited judicial resources. Parties should be conscious as to the possibility of adverse cost consequences as well. Some judges have awarded costs against moving parties who fail to recognize that the urgency determination is a “summary exercise.” Accordingly, individuals who have been laid off or terminated and wish to vary support sums should first consider speaking with their former spouses before bringing a motion. Those individuals should consider establishing an evidentiary basis for their claims by collecting financials and other documents. Those include 2019 income figures, proof of loss of employment, and proof of efforts to obtain replacement employment. Parties should also seek legal advice before filing a motion or application with an Ontario family court.
For further information on this issue and how it may affect your particular situation, please contact one of our experienced family lawyers to set up a consultation.