• Zaia S. Daniel

COVID-19 and Urgent Motions for Child Support



A recent decision in the Ontario Superior Court of Justice addressed the issue of child support in light of challenges created by the COVID-19 pandemic. In Browning v. Browning [1], the spouses separated after the father was criminally charged in January 2020. After the separation, the children lived primarily with the mother. Although the spouses had entered into an interim minutes of settlement governing the parenting schedule, the father had not paid any form of child support since the separation. Due to COVID-19, the mother was laid-off from her employment and struggling to meet the basic financial needs of her children.

The court considered whether the motion was of sufficient urgency to meet the requirements set out to deal with the COVID-19 emergency and considered the effect of reduction in the father’s income arising out of COVID-19 on the amount of child support payable.

WHAT IS CONSIDERED URGENT DURING THIS UNIQUE TIME?


As a result of the COVID-19 pandemic, starting from March 15, 2020, the courts limited the number and type of matters that could be heard. Certain family law matters, including direct issues regarding parties’ financial circumstances, were deemed urgent and parties were allowed to bring motions under those circumstances. In Thomas v. Wholer, the Court held that urgency arises when the concern is immediate, serious, definite and material, and clearly particularized in evidence. [2]

In Browning, the Court found that the mother’s situation met the test for urgency set out in Wholer. The mother’s evidence of urgency was:

  1. because of COVID-19, she has been laid off from her employment, where she had earned approximately $37,000 per year

  2. she now receives the CERB in the amount of $2,000 per month

  3. She has not received the Canada Child Benefit (CCB) for reasons that are in dispute;

  4. the father has not paid her any child support since the parties separated in January 2020; and

  5. on her income, without child support and the CCB, she is struggling to meet the basic needs of her children.

The court held that these circumstances support a finding that this was an urgent matter. The issue of child support was immediate, serious and material.

QUANTUM OF SUPPORT DURING THE COVID-19 PANDEMIC


The court then moved to the issue of calculating the child support following a determination of the father’s income in light of COVID-19. Before the pandemic, the father earned approximately $82,000 in 2018 and 2019 from two employers, or $6,833.33 per month. However, the father’s income in March and April of 2020 had been reduced to $5,125.89 per month. The court determined that the father’s income for ongoing child support purposes during this time was based upon an annualized income of $50,000. The held that while COVID-19 is ongoing, it is not appropriate to use the father’s 2018 or 2019 income as the basis for his ongoing child support obligation.

In Mohamed v. Osman, the respondent failed to provide a financial statement or income information to the court. The court stated that it was very aware that the pandemic was having a detrimental impact on taxi drivers and made a more conservative estimate of the respondent’s income on a temporary basis. [3] In Jumale v. Mahamed, the court found that the respondent may have a case to claim urgency in the reduction of his child support obligation temporarily, but he had not presented a sufficient evidentiary foundation to support that finding. [4] The court noted that the lay off of an employed person due to COVID-19 closures and that person’s receipt of Employment Insurance could well provide a compelling reason to temporarily reduce child support obligations. In Mr. Mahamed’s case, the court found no evidence to show that his income had been reduced or discontinued on account of COVID-19.

The decisions from the various courts, although differing in result, make it clear that an evidentiary foundation is required to support any claims by the support payor of a reduction in income arising out of the COVID-19 pandemic for purposes of calculating child support. In all three cases, the court considered the impact of COVID-19 as a factor in determining whether to reduce support payments temporarily. The resulting decisions were based on the strength of the evidentiary foundation in showing that COVID-19 was the catalyzing event leading to income reduction or loss.

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Disclaimer


Suliman Law Firm has prepared this document for information only; it is not intended to be legal advice. You should consult us about your unique circumstances before acting on this information. Suliman Law Firm excludes all liability for anything contained in this document and any use you make of it.


Citations

[1] Browning v. Browning, 2020 ONSC 2697

[2] Thomas v. Wholer, 2020 ONSC 1965

[3] Mohamed v. Osman, 2020 ONCJ 172

[4] Jumale v. Mahamed, 2020 ONSC 2091

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