The financial impact associated with divorce or separation can be a legitimate concern for people, and the obligations around things such as spousal support and child support should not be minimized or taken lightly. Once a court sets child support or spousal support amounts, it can be very difficult to have those changed. Even a loss of income during COVID-19, which has had a financial impact on many is not necessarily enough to warrant reduced support payments. This was the situation in a decision recently issued by the Ontario Superior Court of Justice.
Father looks to reduce spousal and child support
The father brought the motion to the courts claiming urgency. He was seeking to reduce his child support payments while also reducing or terminating his spousal support obligations stemming from an October 30, 2017 order.
The father claimed that due to COVID-19 he has suffered a “material change in circumstances” that caused his income to be reduced by 42%. The court agreed to hear the matter based on the presumptive urgency stated by the father.
The parties were married in 2008 and separated in 2014. The separation had not been a smooth one, with the parties appearing before the court on numerous occasions. Ultimately, the father was ordered to pay $2,086 per month in child support and $3,197 per month in spousal support. That said, the father had failed to make proper financial disclosure in the past.
Has there been a material change in circumstances?
The father claimed that his reduction in income has been severe. He provided what the court described as a “brief affidavit” from the CFO of his employer. The letter stated that “due to the COVID-19 Pandemic we are reducing your salary by 42% and canceling all benefits effective April 1, 2020.” The father’s reduced income amounted to $95,837 per year.
However, the court noted that the father is a 90% shareholder of his employer, and it is he who sets his salary. This made the mother suspicious about how COVID-19 impacted his business and its chances for recovery. There was no evidence provided by the father to demonstrate the impact on his business.
The father also claimed that his income from investment properties had dried up because tenants have not been able to pay rent. Again, though, the father failed to identify the properties and tenants that have been income. The court also noted that his rental income was not even included in his financial statements used to calculate support payments in the first place.
The court found that the father had been able to make support payments since the loss of income occurred. He said in his affidavit that he was fearful he may fall behind in support payments, leading to a suspension of his passport, which would make him unable to do his job. However, the court stated that a future fear about losing income is not the same as a current material change in circumstances. The father has enough savings to cover support, and he has real estate in both Canada and India.
The court concluded the motion was not urgent and refused his application for reduced support.