Varying Child Support during COVID-19

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Varying Child Support during COVID-19

Spencer McMullin, Associate Lawyer - LETOURNEAU LLP • May 04, 2020

Varying Child Support during COVID-19

May 4, 2020 -

Spencer McMullin, Associate Lawyer, LETOURNEAU LLP

In these economic circumstances, it's understandable that obtaining child support or spousal support can be both difficult and extremely necessary. It is also understandable that an individual may need to vary a previous support provision, as layoffs and terminations upend economic situations. Many parents may be wondering if they are still required to pay support despite large changes to income due to the COVID-19 pandemic. Others may be wondering if the support payments they rely on will continue.

As the COVID-19 pandemic situation continues to cause unprecedented change, it is clear that parties will be most successful when they are reasonable and mature. Currently, the Alberta courts have restricted hearings to emergent and urgent matters. This does not mean that child support is no longer payable, even if you have lost your job. Child support is the right of the child, and children have the right to benefit from their parents' income. Even when parents have competing needs (such as debt payments, spousal support payments, mortgages, etc.) child support generally comes first.

If a current child support order is in place, pareents need to be aware that the order remains an order of the Court, which must be followed. As well, the Alberta Maintenance Enforcement continues to have authority to enforce the most recent support Orders.

If your economic situation has changed, there are steps that you should take. First, a negotiated settlement can be pursued. While the Courts have restricted sittings, the Courts will consider granting an Order that both parties have consented to. The child support payor should contact either the recipient of child support or the recipient's lawyer and explain the situation and attempt to negotiate a consent order changing the payment sums.

This communication serves two purposes. Ideally, it will open the door to negotiation and consent. We note that the parties can also explore mediation or arbitration at this time to determine child support if both parties are willing to consider. However, if the parties cannot reach an agreement, the payor has at least given notice to the recipient that they wish to vary child support. Proof of this notice will be important if a payor does not pay child support and later applies for a reduction in arrears when the Court's restrictions are loosened.

The payor should provide proof of a reduced or eliminated income to the other party. This could include a record of employment, a notice of termination, a letter from an employer explaining reduced salary, or a current pay stub with past comparables. Proof of reduction or elimination of income will also be very important if an application to strike arrears is made in the future. A court will only consider this type of application if there has been a "material change in circumstances" and a sharp reduction in income generally will qualify as a change in circumstances.

If negotiation is unsuccessful, a payor of child support can approach the Maintenance Enforcement Program for some relief. The Maintenance Enforcement Program has made the following announcement:

"The Maintenance Enforcement Program (MEP) recognises COVID-19 may impact a payors’ ability to meet their court ordered child support obligations. Similarly, it is recognised recipients are also impacted by COVID-19, and still have monthly obligations for the child(ren). Therefore payors making no payment is not an option.

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.

If you have payor clients that are impacted by COVID-19, it is important they contact their MEP Case Officer for assistance as soon as they know they will need it."

If a payor can come to an arrangement with MEP, he or she may be able to apply for a retroactive variation when the courts loosen their restrictions. We have heard anecdotally that some lawyers have been more successful than their clients in negotiating with MEP.

If you require advice or help varying child support orders in these times, please contact us. The team of family law lawyers at LETOURNEAU LLP are trained in negotiation and dispute resolution, and we would be pleased to assist you in working with your opposing party and/or with the Maintenance Enforcement Program. And if necessary, we can assist you in preparing an application for retroactive variation when the Courts do loosen their restrictions.

This article does not constitute legal advice.

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