One Lawyer’s Advice on Canadian Family Courts, the Lockdown and Child Support Modifications

black and white boy child childhood 208106 2

During the COVID-19 crisis, you’d think that courts would understand that millions of people have lost their jobs and need to reduce their child support payments.  After all, existing orders were made on the basis of pre-COVID realities and those have substantially changed.  And no judge can seriously consider the notion that a person laid off from his employment due to the lockdown is “voluntarily un/underemployed.”  So the sensible thing to do is for courts to adopt expedited procedures for non-custodial parents to prove they’ve lost work due to the lockdown and for downward modifications of child support orders.

But, if this attorney’s advice is any indication, such is not the case in Canada (The Lawyer’s Daily, 6/3/20).  Indeed, it looks very much like business as usual there.  Plus, attorney Darlene Rites appears to live in a world unknown to many divorced Canadian parents.

Just as an aside, Rites informs us that “44 per cent of Canadians” have lost work due to the disease and the lockdowns.  The actual number is 44% of households, a vastly smaller number of people than Rites indicated.

So, with that dodgy statement to set the tone of her piece, Rites goes on to explain to desperate parents “how to manage.”  To begin with, according to her, if a non-custodial parent loses his job, there’s no cause for alarm; he can just access “other assets available to them — such as inheritance, savings accounts, possessions that could be sold, help from family members.”  Well, that solved that, didn’t it?

Now, Rites is a lawyer and people who employ her have the money to do so.  They have the “inheritance, savings accounts, possessions that can be sold…” she seems to believe everyone has. That means she doesn’t see parents who don’t have those things, i.e. the ones who need the downward modifications the most.  Rites appears oblivious to the selection bias involved in her law practice.

Then there’s her phrase “help from family members.”  Guess what Ms. Rites, those family members don’t owe the child support.  Plus, it would be a deeply flawed system that refuses a downward modification based on the idea that, while the non-custodial parent doesn’t have the money to pay, someone else related to him does and therefore must.  Of course, the Canadian child support system makes no such demands on “family members” of the non-custodial parent.  That raises the question of why Rites, a lawyer, apparently believes it does.  Why would she include that in her list of resources to pay child support if she didn’t believe it was relevant to the issue?

Rites then urges clients to “Think about former spouse’s situation. Does the other parent still have a job or access to funds that will help to pay the rent or mortgage, and provide food, shelter and clothes for the child?”  And what if she does?  Does Rites seriously believe that a judge will modify a child support order based on the custodial parent’s earnings?  After all, those, if they exist at all, have probably remained roughly constant over the months/years and therefore are already calculated into the child support order.  As such, they can provide no evidence for a change of circumstances sufficient to modify the order.

But hey, non-custodial parents should look on the bright side of things.  Sure he lives paycheck-to-paycheck, can barely afford the child support he’s ordered to pay and now has lost his job, but what’s to fret about?

“Consider the expenses that have gone because of the pandemic. Because much of the nation has closed, parents likely do not have to pay for day care, private school fees, costs of extracurricular activities (sports teams and educational programs), and transportation to various events and gatherings.”

Be like two fried eggs; keep your sunny side up!  Great legal advice.

Then Rites moves on to encourage the non-custodial parent to talk sensibly to the other parent.  Maybe she’ll agree to take less.  There’s no reason why she would, but he never knows.

And, if that doesn’t work, he can always pay even more money to hire a mediator.  That’s Rites’ next idea.  Of course no mediator can do what’s not backed up by law and court practice.  So if the custodial parent knows the court won’t modify the order, there’s no impetus for her to do so voluntarily.  And that of course renders mediation impotent.

If none of that succeeds in lowering the amount of child support (and why would it?), then the non-custodial parent can always hire Ms. Rites who will “leverage [her] skills and expertise as a family law lawyer to help them file a motion in court to change the current agreement.”  Notice that the only thing Rites promises to do is “help them file a motion.”  She won’t use her knowledge of the law and expertise to get the guy a better deal if possible.  She won’t negotiate with the other lawyer.  She won’t appear in court.  No, she’ll draft a motion and turn Dad loose on his own.  Nice.

Finally, her one and only reference to actually using the legal system to modify the order in a situation that unquestionably warrants doing so is this:

“Remember that losing a job is one of the qualifiers that may enable the client to have the amount of monthly child support legally changed.”

In other words, don’t get your hopes up.  The deck is stacked against downward modifications, even when they’re obviously needed and legally warranted.  And don’t expect a lawyer to help you, even in the unlikely event that you can afford one.

Leave a Reply

Your email address will not be published. Required fields are marked *