COVID19: 5 Tips on How to Reduce Child and Spousal Support Payments

Millions of people in Canada have lost their jobs because of a strange pandemic that has shocked us to the core: financially, emotionally, physically. Every day we are trying to grapple and adapt to the welcome and unwelcome changes COVID19 has brought. One of those changes is the loss of financial security; and the inability to financially support others like we used to and want to.

For couples and children who are still together as a family, sometimes all it takes to adapt is to come up with a lower budget as a unit. But when it comes to financial support, couples who have been separated are not so lucky, and sometimes sadly, neither are their children.

This article only applies to people who have lost their jobs and are genuinely unable to pay support like they used to before due to Coronavirus. I am aware that in some situations COVID19 is used as an excuse not to pay support. We do not support such individuals and this article is not for them.

How to Reduce Support Payments During COVID19

Before reading the 5 tips sections below, understand the basics of reducing child support or spousal support. You need to generally meet 5 criteria:

1. You had full-time or part-time employment (or were self-employed) prior to COVID19 and you no longer do;
2. Your income has plummeted substantially, or you have no income because of COVID19;
3. You did not cause this situation, COVID19 did.
4. There is very little probability of getting your job back, or at least anytime soon;
5. You are trying to find alternative employment but have been unable to. You have proof to show that you have been looking for a job.

Tip #1: Proper Notice

The first thing you need to do is to notify the recipient in writing of your situation:

1. Date your letter, email or text;
2. Go into detail explaining what about your situation has changed and what your new income will be;
3. Do a calculation of your new income or any monthly payments such as CERBS;
4. Offer a lower/new amount for child and spousal support;
5. You are encouraged to suggest that the new support amount will be reviewed in 3 or 6 months to see whether it should change, due to new employment, etc;
6. If your ex-spouse agrees to a lower amount of child or spousal support, get that in writing and try to change your previous agreement or court order to reflect the new situation.

Tip #2: Exchange of Documentation

If your ex-spouse asks you to provide documents proving your change in income, provide the following:

1. Any letters from your employer confirming that you have been laid off or will be working reduced hours, etc;
2. Your last statement of pay which will show the last amount of income you earned before being laid off;
3. Recent bank statements confirming no deposit of employment pay to your bank account;
4. Documents showing whether you are obtaining Unemployment Insurance of CERB;
5. If you have shared custody or parenting time of your children, you can also ask for your ex to provide his/her documents to show if there has been an increase or decrease to his/her income in order to make any adjustments. 

Tip #3: Try Private Dispute Resolution First

In BC, our courts are currently limiting the scope of what they can do because of COVID19. For several weeks they only did urgent hearings and now are only hearing matters via telephone/virtually. There is a huge backlog and therefore, long waiting times before you can get in front of a judge to ask for your support payments to be lowered. This process can also be costly and create more stress and animosity in an already stressful situation. Therefore, we urge you to exhaust all chances of settlement before going to court. Here is what we suggest you do:

1. No matter how much you think your ex-spouse is unreasonable or you ‘just can’t reason with her/him’, offer to resolve the issue through a few private dispute resolution options such as:
   1. Having an in-person meeting to discuss options and explain what needs to be explained;
   2. Mediating the situation with either a trusted individual or a neutral third person;
   3. Mediating the situation with a certified family law mediator. These mediators are also family law lawyers so they can be effective in pushing you towards settlement.
   4. If all else fails and you won’t agree, try private arbitration. To know what arbitration is about, click here.

To learn about mediation or arbitration during COVID19,  click here. 

Tip #4: Transparency During Court, Mediation and Negotiations 

#1 rule in any litigation, mediation or negotiation is to have clean hands. This means you should never try to play games, never try to hide anything about your situation, and prove your case with so many documents and detailed statements that you leave nothing to the imagination and answer questions before they are even asked.

Therefore, when you are writing an affidavit for court, make sure it is as detailed as possible and attaches all documents mentioned under tip#2.

It is good to provide a written statement before mediation, arbitration or negotiations about your situation and your goals so that by the time you go into these events, you can save on time and costs in having to explain yourself. You should use these meetings to answer any questions and negotiate, not to explain your situation from the ground up.

Tip #5: Choose if You Need an Agreement or Court Order

If you exhausted all attempts to settle on lowering your support obligations and you couldn’t agree, you will need to apply to the court to change your support obligations. You could fall into one of these two categories:

You Have an Agreement and Have Never Been to Court over Support Payments

In this situation, you will need to change the agreement. You will need to file a claim to change the agreement. You can file a claim in both the BC Supreme Court and the Provincial Court to do this. The process starts by:

1. Filing an Application to Obtain an Order in the Provincial Court; or
2. Filing a Notice of Family Claim at the BC Supreme Court.

Note that in BC, both the Provincial Court and the Supreme Court deal with changing child and spousal support amounts so you can choose your venue. Generally, for people who have lawyers, BC Supreme Court is more recommended, and for unrepresented litigants, the Provincial Court is easier to navigate.

You Have a prior Court Order

In this situation, you need a judge to vary your current order if you can’t agree on the change with your ex-spouse.

1. First look at the Order and determine whether it was made at the Provincial Court or the BC Supreme Court;
2. Then depending on which court:
   1. File an Application to Vary an Order at the Provincial Court; or
   2. A Notice of Application at the BC Court to vary your current court order.

Our child and spousal support lawyers at YLaw have dealt with numerous cases such as these. It is always recommended to seek legal advice about your specific situation before embarking on the above procedures. Contact us at 604-974-9529 or get in touch.