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Unexpected child support consequence of COVID-19

Tuesday, September 08, 2020 @ 11:10 AM | By Gary Joseph

Gary Joseph %>
Gary Joseph
Courts generally reduce the amount of child support during the academic year where the child is not living at home, in accordance with s. 3(2)(b) of the Child Support Guidelines (CSG). Where a child is residing in another residence for the bulk of the year, it is inappropriate to apply child support tables that are not designed with that living arrangement in mind. Furthermore, the tables assume that the recipient spouse is providing physical shelter and amenities to the child under his/her roof. When the child is away at college or university, this assumption no longer applies.

Relying upon these assumptions, courts have crafted what has become known in the profession as summer support arrangements. In most cases a court will require a parent to only pay base guideline support for the summer months when the child is home from school and residing with them.

In Drinkwater v. Gilchrist 2008 O.J. No. 3370, Justice Cory Gilmore adopted the Court of Appeal principle of the 2006 decision in Lewi v. Lewi 80 O.R. (3d) 321 and recognized that base guideline child support should not be paid when a child is living away from home to attend school. In Barr v. Cudney [2007] O.J. No. 4833, the parties’ child attended university full time away from home. The court found that the monthly child support payments would not be suspended for the child from May to August when the child was at home with the mother; however, they would not be payable while the child was attending school for eight months. In Padua v. Gordon [2008] O.J. No. 3600, Justice Stanley Sherr ordered the table amount to be paid when the child was home during the summer and that the child’s expenses at university away from home be apportioned between the parties during the remaining eight months of the year taking into consideration the child’s contributions to those expenses.  

In Wakeford v. Wakeford 2011 ABQB 106, Justice Joanne Veit confirmed the basic child support payment is intended to compensate the parent with whom the child is residing for expenses connected to the daily living infrastructure of the child. Where the child is not, and will not be, residing with either parent, there is no logical basis for any child support payment other than proportional contribution to CSG s. 7 expenses. In Albert v. Albert [2007] O.J. No. 2964, at para. 57, Justice T.P. Herman notes as follows: “The cases generally acknowledge that where a child is living away from home while she or he is attending university and the parents are contributing to the children's living expenses, the table support may be inappropriate.”

In determining the appropriate amount of support, Justice Herman held that she was required to take into account the condition, means, needs and other circumstances of the child and the financial ability of each parent. In this case, the parties agreed that the full table amount was payable when the children were living in the home of the recipient and that they were to share the post-secondary expenses in proportion to their incomes.

Support payors rely upon this jurisprudence and often plan their financial affairs in this context. For the payor spouse, university or college brings a new support dynamic; summer support and a proportionate share of post-secondary school costs (sometimes mitigated by the presence of an RESP). With COVID-19, however, this dynamic is subject to change and many support payors will be quite unhappy with the result. With online classes and remote access, many post-secondary students are not off to Windsor, London, Ottawa, Kingston or other locations of post-secondary learning. Instead they are camped out at home, learning virtually. The expected model will not reflect the reality. The young adult, the subject of a support order, will continue in most cases to live with the support recipient and the payor spouse will be expected to continue to pay the table amount plus a proportionate share of the post-secondary school costs recognized as s. 7 expenses.

This result may be somewhat mitigated by any savings related to accommodation for the student but not in all cases. Rooms or apartments for the student had been previously secured before the extent of the COVID-19 shutdown was known. Landlords have not been quick to release contractual rights to rent. For many, the out of pocket costs of support and s. 7 expenses will likely exceed the planned for costs of support, at one time reasonably foreseeable, to the support payor.

Welcome to the COVID-19 world.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

Photo credit / Tero Vesalainen ISTOCKPHOTO.COM

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