Divorce can be a rough road for any family, even in the best of times, as anyone who has been through it can attest.
Add on the stress and confusion of a pandemic and related job loss or business challenges and the whole legal aspect of divorce can be even more of a minefield.
The Chief caught up with Chantal Cattermole, a senior family lawyer with Clark Wilson LLP to discuss the unique challenges divorced or separated parents may face.
What follows is an edited version of that conversation.
Q: If someone's income is currently reduced because they were laid off due to COVID-19, do they still have to pay the full amount of child support?
A: You still have to pay. Child support is based on your line 150 income from the previous year's tax return. So, if you made $100,000 in 2019, then you would pay based on that.
Child support is the right of the child. It is not an obligation that you pay to the other parent. It is an obligation you owe to the child.
It is critical for the basic needs of the child, a roof over their head, the lights, heat, food, the internet.
You can't just automatically decrease or stop paying that, even if you have lost a job.
If that is what has happened, you are going to want to try to negotiate an interim solution. Go to the other parent and explain you have lost your job and ask to reduce the child support — provide all the documentation and information to prove that your situation has changed.
Maybe the other party will agree.
And if they don't agree, you can suggest mediation or an alternate dispute resolution process. That can be a good way to get a quick result.
If that doesn't work, the recipient can register the order or the separation agreement with the Family Maintenance Enforcement Program (FMEP). That is free.
The government program will enforce the order between the parties.
If the payor is unable to pay, FMEP will go after them and it has broad powers, such as garnishing wages or withholding tax refunds, GST credits, and the like.
FMEP staff can obtain other orders to withhold a driver's license or passport.
If you are the payor and you just can't pay, you can bring an application to the court and you will have to show the reasons why you can't pay. There are two different tests — one at provincial court and one at Supreme Court and basically, they look at the wellbeing of the children and if there is another means to pay.
So maybe you can sell an asset or an RRSP. With a hardship claim, they may reduce the monthly payments, but only for a finite period.
Q: Are there agreements that can be had such as, if one parent is suddenly home due to the pandemic and so he may not be able to pay as much, but he can watch the kids all day every day, thus reducing childcare costs?
A: The great thing is, you can negotiate an agreement with your parenting partner to do anything you want. If it is not a finite order but is just an interim order. People horsetrade different things all the time. But if you are seeking to make this a finite, forever, order, then the court will take a look at what is in the long-term interest of the child.
Q: What about alimony if you are laid off?
A: So, child support is legislated under the federal child support guidelines and it is a legislated duty and responsibility that we have to our children as parents.
Spousal support is a legal possibility. You have a right to seek it.
It is a lot more complicated and a lot more nuanced legal argument around entitlement.
There are compensatory and non-compensatory spousal payments. It is needs-based, such as "I need it because I didn't work in the relationship, or made less money than you."
Q: What do we know so far about how COVID-19 will influence family law agreements?
A: It is so confusing and hard for us as family lawyers to advise our clients on what to do right now.
I would say for child support, we haven't been shifting too far off the line 150 income assessments, unless there are extenuating circumstances as to why we should.
For spousal support, we are looking at more alternatives — so can we trade assets to offset the amount the payor can pay. We are also taking, as we often do, a three-year average of income into account, factoring in what your COVID income would be for 2020. If you know already, for example, that you are not going to be receiving your bonus. Or if you have been laid off and don't have an income, then obviously it would be significantly unfair to the payor to the income-based on something that doesn't exist. We are now setting review periods.
For example, "I recognize that you, Jennifer, are only making $X amount because of the pandemic, so you will pay me $Y until this set review date." And that date will be set not just on material changes at that time, but it will be triggered on COVID-19 ending or restrictions lifting. For the recipient of spousal payments, the idea is that you must become self-supporting over time. Could it be argued you can't become self-sufficient right now, because of COVID and no one is hiring or the market is tight?
Maybe the recipient can try to extend the period of support.
But a payor may say that it isn't his or her problem, that you can't get back on your feet during this time. It might be then that the recipient says, “pay me for this length of time and I will try regardless of COVID, but lets set a review. And if I am still not on my feet, even though COVID has passed and jobs have opened back up, then you can come after me. But if things are still tight at that time due to the pandemic, maybe there are other things the payor can facilitate like support for retraining.”
Q: There seems, anecdotally, to be some disagreements around how seriously or not each parent is taking COVID. What do the courts say about those kinds of disagreements?
A: Very recently there was a Supreme Court of BC decision, and, in that case, the judge said COVID is not to be used as a justification for denying parenting time. If you have specific concerns about the health and safety of the children or household risk, that will be considered, but absent those concerns, the refusal will not be allowed. Parents are expected to show flexibility and work with the other parent and comply with the recommendations of the public health officer in regards to care. If there are risks, the court will look at reducing the risk before they will reduce parenting time. As long as everyone is following available COVID-19 protocols, parenting time should be maintained.
Q: And are the courts open now, to deal with the family law issues?
A: We understand trials are going to start going ahead this month, with COVID protocols in place. As it relates to chamber applications, we haven't heard of any changes.
You are currently allowed to bring one urgent issue before the court, to be heard by telephone and you have to make an application for that.
The court has to determine why it is urgent. It can only be only one issue. This has positives and negatives. It can be frustrating for the client or the party with less power because you can only bring one issue. The great thing, I think, personally, about the limitations is it really streamlines people to just focus on the issue at hand, rather than doing more mud-slinging or multiple issues that don't need to be brought in.
Q: Is there anything else you have been hearing from your clients in relation to COVID and family law?
A: The biggest change and the hardest thing for family law in the time of COVID is the valuation of family assets. We already had struggled with this when the real estate market was crazy.
The new reality is that businesses need to be assessed at the date that is agreed upon. Has the business kept its value throughout COVID, or has it plummeted? If you evaluate it at the lower point of the pandemic, say mid-March, but the business has picked up, does that suddenly mean that if you stay with the mid-March valuation that you are leaving money on the table? It is quite difficult.
