COVID-19 has presented many new challenges for parents to face.  You may find yourself in difficult situations.  What if the other parent is not physically distancing and continues to see relatives and friends and I feel their access should be limited to FaceTime only to protect the children?  What if I am not receiving the child or spousal support I should be?  Or what if I want to make an application for child or spousal support?  If you cannot reach an agreement with the other individual concerning these and other family law issues, you may want to seek relief from the Court.  However, the Court is only hearing matters on an emergency basis.

The purpose of this article is to provide a summary of the threshold you must meet in order for your matter to be heard by the Court right now.  If your matter does not reach this urgent threshold, then you may wish to consider mediation, arbitration, collaborative law, or another form of negotiation.

The Court’s Directive:

There are essentially four ways that your family law matter will be heard by the Court right now:

1. The safety of either the child or a parent is at risk. This includes things like restraining orders, non-contact orders, and orders for exclusive possession of the family home;
2. An essential medical decision must be made regarding a child or if a child has been wrongfully removed from the jurisdiction or wrongfully retained by one party (such as if one party withholds the child from the other; more on this below);
3. There are dire circumstances of financial need, including where one party may squander or dispose of property such that an order to preserve property is required; or
4. Any other circumstance which the Court considers urgent.

There are few reported decisions in Saskatchewan and, therefore, much of the case law is from Ontario. These cases are certainly still relevant in Saskatchewan as the Court looks to cases outside of the province, especially when dealing with novel matters such as COVID-19. The following are examples of cases which were, or were not, considered urgent enough to be heard by the courts.

The benchmark case is Ribeiro v Wright, 2020 ONSC 1829. In this case, the Ontario Superior Court explained that the presumption in most cases is that orders or agreements for parenting time should remain in place during COVID-19, unless there is evidence that one parent has been exposed to COVID-19 through their employment or otherwise, or there are heightened risk factors given their employment or personal behaviours. In these circumstances, a matter will be considered urgent and adjustments to the parenting schedule required.

The courts in Ontario have been clear that there needs to be a real concern for the safety of a child or parent in order for a matter to be heard on this ground. One example would be an imminent risk of harm to a child or one of the parties involved. Cases on this topic are addressed below in the “any other circumstance” category.

Essential Medical Decisions or Wrongful Removal/Retention/Relocation:

In L-AF v KVS, 2020 ONSC 1914, the father brought an application to prevent the mother from relocating with the child to a different city. His evidence was that the mother had listed her home for sale. The father was also concerned with strangers coming to view the house during the current quarantine as it violated physical distancing protocols.  The matter was viewed as urgent and set to be heard at a later date.

Placha v Bennett, 2020 ONCJ 164, was a case where the father took the child, who normally resided with the mother, on a holiday to Newfoundland and Labrador from Ontario. In the midst of the trip, the COVID-19 pandemic became an emergency and he refused to return the child to the mother in Ontario, saying it would be unsafe for the child. This was deemed an urgent matter and the child was ordered returned to the mother.

In an unreported decision from the Saskatchewan Court of Queen’s Bench from March 24, 2020, Justice Brown considered a case where a father was withholding the child from the mother under the guise that, since schools were closed down, the summer break had started such that they shared parenting equally. The mother applied to have the child returned to her care. This was determined to be an urgent circumstance and the child was ordered returned to the mother.

Amirzada v Alemy, 2020 ONSC 1979, was a case where the mother applied to move from Toronto to Vancouver until the COVID-19 pandemic was over. The father had assaulted the mother recently and there was a restraining order in place. The court deemed this matter urgent, and ultimately ordered that the mother was not allowed to move due to the risks associated with travelling cross country, the unknown length of time the pandemic will last, and the father’s restricted access to the child.

Dire Financial Circumstances:

In Roberts v Roberts, 2020 ONSC 2341, an anaesthesiologist applied to reduce his spousal support payments to his ex-wife. In 2018, he earned $634,747, but he later suffered a heart attack and had to stop working. He was currently earning $104,400 per year on disability.  Given the extent of the drop in income, the Court concluded these were dire financial circumstances and scheduled the application to proceed.

An application for child support which had previously been deemed urgent and subsequently scheduled to be heard on an emergency basis was considered in Lafond v Blouin, 2020 ONSC 2396. While the decision did not indicate why the matter had previously been deemed urgent, the case involved a mother whose sole sources of income were social assistance and tax credits of around $12,000 per year.  There were two children involved.

In Mohamed v Osman, 2020 ONCJ 172, a woman from the United States brought an application for child support prior to COVID-19 shutting the courts down.  The Court made a temporary order providing that the father pay child support and adjourned the application until after the courts return to normal operation.  Of relevance here is that the father’s income was unknown, and the Court imputed it to $25,000, noting that it would have normally imputed income of $40,000 if we were not in the midst of COVID-19.  In making the temporary support order, the Court noted that the mother was supporting three children on her own without help from the father which was unacceptable.

In Scion v White, 2020 ONSC 1915, the father applied for relief regarding access, finances, and property. However, the Court determined that only the access issue was urgent and refused to hear the issues relating to finances and property.

Regarding family property, in order for a property issue to be urgent, there must be an imminent risk of irreparable harm, including unnecessary financial loss, if the application is not heard immediately (JW v CH, 2020 BCPC 52).

Any other Urgent Circumstances:

These cases have been described as “exigent” or “critical” in the case law. The Court will ask itself whether any harm or prejudice would result to one party if this matter is not heard immediately. In the vast majority of cases, the answer will be no.  Most matters will be able to wait until the Court is back in regular session.  The cases previously discussed, and those discussed below, provide an indication of what is urgent in the eyes of the Court.

In Thomas v Wohleber, 2020 ONSC 1965, the Ontario Superior Court laid out four factors which must be met in order for a matter to be considered urgent:

1. The concern must be immediate and cannot wait to be dealt with later;

2. The concern must significantly affect the health or safety or economic well-being of the parties or their children;

3. The concern must be tangible. It must be a real, proven concern, not something that is speculative; and

a) For example, you cannot simply say that you do not think the other parent will follow physical distancing protocols. Rather, you must have clear and specific evidence that they are not doing so.

b) In NJB v SF, 2020 BCPC 53, the B.C. Provincial Court dealt with a matter where the father had restricted all access to the mother. The father did not think the mother would take COVID-19 seriously, based largely on her history of mental health issues which lent themselves to conspiracy theories.  The Court found the father’s concern was only speculative and not born out by the evidence presented.

4. The concern must be clearly articulated and proven in the evidence put before the Court.

The case law shows there is a high standard to be met here. In KB v KK, 2020 SKQB 86, a father applied to the Saskatchewan Court of Queen’s Bench to place the children in his primary care, rather than the mother’s. The father had concerns with the mother’s parenting and that she was abusing drugs.  The Court determined that this was not an urgent matter and it was adjourned, largely because there was no evidence that the children were in any way at risk.

The KB v KK decision referenced an unreported Saskatchewan Queen’s Bench decision of March 25, 2020, in which Justice Brown explained that most matters will feel urgent to the parties involved, however, those matters which are currently being heard are those with importance in the context of the physical distancing and isolation reality we are presently living in. If the matter can wait until after the current pandemic is over, it is not urgent.

In a recent Saskatchewan decision, TDL v SDS, 2020 SKQB 97, the father, prior to COVID-19, applied to vary a judgment from 2014 regarding parenting of the children. The matter was adjourned after the Court largely restricted its services to emergencies only. The father then applied again for the matter to be heard on an urgent basis, part of which was that the mother was not obtaining and administering the requisite hormone therapies for their transgender child.  Since the child had not yet started hormone therapies for transition, the Court did not consider this to be urgent to the child’s health or wellbeing.

In Davis v Eby, 2020 ONSC 2011, an application was made by the mother to restrict the father’s access to supervised only due to safety concerns.  The child had been present in the father’s home when the father’s cousin overdosed on drugs.  There were also concerns that the father continued to have drug issues as he refused to submit to a drug sample per a court order.  This matter was deemed urgent and heard by the Court.

In Scion v White, 2020 ONSC 1915, the Ontario Superior Court noted that issues relating to access with children can only “potentially” be urgent if there is a complete denial of access. So, even if you are upset with a lack of access, the Court may only see it as urgent if there is a complete denial of access.

• In Tessier v Rick, 2020 ONSC 1886, the father applied to enforce a court order for his access. The mother had been denying all access to the father, but her evidence was that the father was not observing COVID-19 safety protocols.  The Court saw this as an urgent matter, largely due to the apparent risks to the child and the child’s young age (3.5 years-old).
• Likewise, in Le v Norris, 2020 ONSC 1932, the mother was withholding all access to the father for several reasons, one being COVID-19. The Court determined this matter was urgent and ordered that the father’s access be restored per the court order in place.  The Court noted that people should use basic common sense to follow court orders and respect physical distancing protocols at the same time.

These are certainly unprecedented and challenging times.  COVID-19 has created and added stress in all areas of our lives, including incomes and finances.  For those who receive, or pay, monthly child or spousal support there is now an added level of risk.  Will the payor of support be laid off, meaning that the recipient may lose the support they rely on to support themselves or their children?  Will both the recipient and payor lose their jobs and, if so, will there be enough money to go around?  For those individuals facing such scenarios, this article aims to provide some practical tips on how to manage these issues during COVID-19. 

Please note: this article is not meant to provide legal advice and we recommend individuals seek out legal advice relevant to their particular circumstances. 

For the Recipients of Support:

For those individuals receiving support, outlined below are some steps to consider taking when the payor of support has been laid off, their wage has been cut, or there has been some other reduction in their income and they are unable to pay the full amount of support.

1. Investigate

The first thing you may wish to do is ask some questions of the payor.  Some questions you may consider asking are:

• Were they laid off or was their wage/salary reduced?
• How much was their wage/salary reduced by?
• If they’ve been laid off, are they eligible for Employment Insurance (“EI”) benefits?
  • If so, how much are they receiving?
  • Is their employer “topping up” their income so that, between EI and the “top up”, they are receiving about the same income as before?
• If they are not eligible for EI, are they eligible for any of the new, government-created support programs?

The main thing here is to ensure that the payor has exhausted their options to maximize their income and to figure out what they are earning.  This allows you to better assess the amount of support they may be able to pay for the time being.

Regarding child support, once you have assessed what the payor’s level of income is, you may wish to determine a rough estimate of what their child support obligation is so that you can compare it to what they paid prior to COVID-19.  The following link provides a calculator which can be used: https://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.asp#Lookup

2. Assess finances/needs

Once you have some idea of how much support can be paid for now, assess your needs and determine how you can best make this work for your budget and expenses.  How much has your own income decreased due to COVID-19?  Have any of your expenses changed because of COVID-19? 

While your needs are not relevant to the amount of child support, which is based on income alone, needs are considered in determining the amount of spousal support.  However, even if you only receive child support, from a practical standpoint, determining what your needs are is important in budgeting and managing expenses on a reduced income.    

Bear in mind the increased Canada Child Benefit payments and GST payments announced by the government as these could help bridge the gap.  Receiving less support, whether it be spousal or child support, will obviously result in some adjustment to your spending ability. However, it is important to be realistic and remember that money cannot be created from thin air; if the payor is receiving less income, you will have to be practical and accept that there is simply not as much money to go around at the moment.

Ultimately, the payor may not be able to pay the full amount of support you were receiving.  You should also bear in mind that the payor may later apply to the Court to reduce any arrears of support owing based on their reduced income.

If the payor asks you to sign an agreement accepting less support in the interim, we recommend that you seek the advice of a lawyer before agreeing to or signing anything.

3. Keep communication open

It is a good idea to check in with the payor once in a while to determine if their situation has changed.  Perhaps they have been called back to work or are receiving another source of funds from which support can be paid.

For the Payor of Support:

For those individuals paying support, outlined below are some steps to consider taking when you have been laid off, your wage has been cut, or there has been some other reduction in your income:

1. Investigate sources of income

If you have been laid off, determine if you are eligible for EI benefits.  If you are not eligible for EI, you may be eligible for the newly introduced Canada Emergency Response Benefit plan.  Investigate your sources of income fully to ensure you are taken care of and have some means of providing support.

2. Assess finances/needs

Depending on your income level, it could be that you are receiving relatively the same amount of income on EI or the Canada Emergency Response Benefit.  If so, you can continue paying the full amount of spousal and/or child support. 

Even if your income has declined, if there is a court order or other agreement specifying the amount of child and/or spousal support to be paid, you do not want to find yourself in breach of that order or agreement.  Further, you still have a legal obligation to support your children.  Securing an agreement to a lesser amount of support will help you avoid being in breach of the court order or agreement. 

3. Communicate with recipient to see what their needs are

Once you have assessed your own finances, needs, and ability to pay support, opening the lines of communication with the recipient is the next step.  Explaining your situation in a frank and honest manner will go a long way in building trust.  You should ask questions to understand what the needs of the recipient/children’s household are, whether there has been a shortfall in their income as well, etc.  Once the information is out in the open, you can hopefully work with the recipient to establish a level of support that works for both people during COVID-19. 

4. Reaching an agreement on the amount of support to be paid

If you are able to reach an agreement with the recipient on a lesser amount of support while your income is reduced, it is a good idea to have the agreement in writing.  Regarding spousal support, parties are allowed to agree to a different amount of support than that specified in an order.  With respect to child support, parents are allowed to agree to different amounts of support, so long as the amount of support provides reasonable support for the children.  The Family Maintenance Act, 1997 (Saskatchewan) provides that a parent has an obligation to provide support for their children to the extent they are capable of doing so.  If your income decreases, the extent to which you are capable of providing support has decreased.  

Before entering into any agreement for support, even a temporary agreement, we recommend seeking the help and advice of a lawyer.