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How COVID-19 affects child support payments: What to do if support is too expensive

Friday, March 27, 2020 @ 2:56 PM | By Alex Boland

Alex Boland %>
Alex Boland
In part one, we talked about the fact that courts have been clear that someone who pays child support cannot choose to pay other essentials, like housing, instead of child support. Child support must be paid first.

That may put a lot of people in a difficult situation if they have lost their job suddenly or otherwise have seen their income reduced due to the COVID-19 pandemic. Here are some things a payor can and should do if they find themselves in this situation.

Find out the exact status of their child support obligation. If their obligation is set out in an order or in an agreement that has been filed with the court, the obligation to pay is considered to be an order of the court. That means if they fail to pay, they are in contempt of court, which can lead to serious consequences.

If the obligation is set out in an agreement that has not been filed with the court, breaching that obligation will be a breach of contract (which is not to be encouraged), but at least it will not be a contempt of court.

Determine whether the obligation to pay child support is being enforced by the Family Maintenance Enforcement Program (FMEP). FMEP is a government-funded agency that collects and distributes child support on behalf of parents in B.C. The agency has the ability to take various enforcement steps, including seizure of tax returns, drivers’ licences and passports, and can garnish bank or other accounts and wages.

If the obligation is being enforced by FMEP, the payor should contact FMEP immediately to let them know he or she may not be able to pay. FMEP has been known to give payor spouses some latitude when they cannot meet their obligations for reasons beyond their control, especially where the payor intends to apply to change an order. The best way to do that, according to FMEP’s website, is by sending a web message via the payor’s FMEP web account.

Whether or not the obligation is being enforced by FMEP, the payor should let the recipient know of the circumstances and what they are able to do to continue to pay child support. Not only is it important for the recipient to know about the payor’s circumstances so that he or she can make their own plans, it is also important to give notice of the change in circumstances as soon as possible as a court in a future variation hearing may make a reduction in child support retroactive to the date of notice.

If possible, the payor should try to reach agreement with the recipient on a reduced amount of child support. Whether or not the obligation is based on a court order, spouses can agree on a different amount of child support. Many parents are willing and able to work with each other in these difficult times.

The payor should get their documents together to be ready to bring an application when the courts are ready to hear less urgent matters. This typically means the last three years of tax returns and notices of assessment.

If the payor has been laid off, the court will also want to see the Record of Employment and records of any benefits received. If the payor has not been laid off, but has reduced hours, recent pay stubs will be important.

And with the courts closed, not only is it impossible to take any steps to vary child support, it may also be impossible to take any enforcement steps to collect child support.

This is part two of a two-part series. Part one: How COVID-19 affects child support payments: Does a parent still have to pay support?

Alex Boland is a family lawyer with Connect Family Law in Kelowna, B.C. He is also a former law clerk with the B.C. Supreme Court.

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