The Covid-19 pandemic has become an unwelcome part of all our lives, leaving no exceptions based on age, gender, ethnicity or socio-economic status. It is here and its consequences are very real, including economic ones on both a global and personal scale. With many people losing their jobs, payors and recipients of child support must now contend with the ultimate quest for survival amid limited resources and competing needs in a hostile environment for all parties concerned.
Payors who lose their jobs or end up working much less will experience a dramatic reduction in income which will affect their ability to pay child support; while the child support recipient may experience a similar fate while their support needs remain the same. It goes without saying that in the midst of the current chaotic climate, a reasonable and mature approach by both parties will go a long way.
Child Support in Alberta Post COVID-19
One key thing to note is that child support is the right of the child; and children should benefit from the means of their parents; whatever those means look like. Where you have limited or competing ‘needs’, it is important for payors to know that as far as the courts are concerned, child support still comes first. The ultimate question then becomes, how much child support is payable by the payor.
Child Support Amount
A good starting point in establish the amount of child support payable is determining the payor’s income, after which the payor can calculate the child support they ought to pay. In an ideal world, the payor’s line 150 on their income tax returns would be used to determine the child support payable, however where one experiences a drastic change in income, the law does permit the use of a payor’s current income.
The payor will want to determine what their extrapolated annual income will be based on their new income/financial situation (be it Employment Insurance, government Covid-19 assistance or social payment, or generally any other source of money coming to the payor). For instance, where payments are received bi-weekly, multiply such payments by 26 to get a projected annual amount for such payments. And monthly by 12, and weekly by 52.
It is important to keep in mind that increasing a child support payment made by a payor is just as proper and technically required as a decrease due to lay-off, covid-19 related reason, or any lawful reason that income is reduced. As such, when work is resumed, it is just as proper, as a payor, to willingly resume support payments to the proper amount based on the increased income (either at the old amount or new income amount, which ever is applicable). It is likely that the Courts will not look favourably upon payors who received reductions in support payments in relation to Covid-19, who choose to not reciprocally cooperate with resumption of increased payments upon resumption of increased income.
Existing Child Support Arrangements
If the payor’s child support obligation is set out in a court order, not paying child support according to the order would be a breach of that court order ,which can attract unfavorable consequences. If the child support order is enforced through the Maintenance Enforcement Program (MEP), MEP has a wide array of powers to enforce the child support payments owing pursuant to a child support order.
As it stands, MEP has made it abundantly clear that not paying child support is not an option. As indicated by the Law Society of Alberta:
To assist payors, the MEP will offer a temporary payment arrangement for less than the ordered amount or a temporary decrease in their current payment arrangement. This applies to payors contacting MEP looking for assistance during the pandemic due to loss of income as a result of COVID-19 diagnosis, self-isolation, loss of job (or reduced hours) or impact of childcare/school closure. Assistance to these payors will be temporary, and it is the responsibility of these payors to keep in touch with MEP month-to-month.
It is therefore advisable for the payor to communicate with MEP and advise them of their predicament, and make the necessary temporary arrangements for reduced child support amounts. This is will not change the child support order obligations and arrears would still accumulate, however it will stop MEP collection or enforcement actions while the parties wait to vary their child support order before the courts or the payor is able to resume making the court ordered payments.
Regardless of whether or not there is a child support order in place, it is advisable to communicate with the recipient (provided there are no communication restrictions in place) and seek to amend those child support arrangements by agreement. Other than it being the courteous and right thing to do, notifying the recipient as to the payor’s change of circumstances allows them to prepare accordingly.
The courts in Alberta are currently permitting the review and filing of consent orders. Therefore, if the payor and recipient can come to a mutual agreement, they have the option of executing a Consent Child Support Variation Order, which the courts can review and file if all is well with that order.
In the event that the payor and recipient are not able to come to an agreement with the recipient, it is advisable for the payor to gather all their relevant documents(disclosure) and be ready to file an application before the courts, when they have resumed normal court services.
It may also help the payor’s plight if they can provide the recipient with disclosure and/or proof of their current income such as your most recent pay stubs. If the payor has been laid off, they may want to provide the recipient with their Record of Employment and information regarding any benefits received as part of the payor’s employment termination. The courts will certainly want to see this documentation, should the payor and recipient find themselves before the court.
IMPORTANT: This article is of a general nature only and should not be treated as legal advice. Further, laws may change over time and should be interpreted only in the context of your unique set of circumstances. It is highly advisable to seek legal advice from our Alberta Family Lawyers at Spectrum Family Law.
Lorraine Mlambo is an Edmonton, Alberta based Family Lawyer at Spectrum Family Law; and a member of the Association of Affiliated Conciliation Courts (AFCC).