A global recession, soaring unemployment rates and an uncertain timeline for recovery are among the economic consequences of the COVID-19 pandemic. In the family law world, the ramifications are obvious.
The second part of child support is paid for “special and extraordinary expenses.” The lower income earner’s income is relevant when it comes to determining the percentage of these expenses each spouse pays. Those expenses include such things as child-care costs required by the lower income earner so that she/he can retrain or work, extraordinary extracurricular activities and post-secondary education or private school.
Some family lawyers describe family law as “Forever Law,” because children’s needs change and parents’ financial circumstances change, requiring families to change the original agreement or order to better suit the current situation. Over the years, a large body of case law has developed, which has interpreted this provision of the Act.
A variation application can be very complex. Even if a change is substantial and continuing, it might not meet the threshold: conceptually, a judge is required to look backward — that is, at what the parties intended at the time the last order was made. Whether a change was unforeseen at the time is a fact-based determination.
In many jurisdictions, the courts are backlogged and it can be several years before a case is tried. If no interim variation is allowed, the payor may well be paying far beyond his means and may have to default on the support ordered before the change occurred. A spouse who is in default of court orders can be denied the right to even participate in court proceedings. While some judges have found their way around this conundrum, it is far from clear whether those cases are indeed correct.
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