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Coming Through COVID-19 – Maybe a Marriage Contract is in Order?

Real Estate, Wills and Estates, Family Law, Blog

I was driving recently and a song came on the radio that caught my ear. It was the 70’s soft rock hit “Make it With You” by Bread. The song starts as follows:

“Hey, have you ever tried
                Reaching out for the other side
                I may be climbing on rainbows
                But baby, here goes …”

The chorus goes “I want to make it with you … I really think that we can make it, girl.”

This might sound cheesy, but all relationships are about expectations – including marriage. Even if your marriage is on the rocks, it may be possible to get things back on track.

There’s lots of news lately about the anticipated rise in divorces and separations as we move through the COVID-19 pandemic. There could be a number of reasons for this, such as families having less income due to one or both spouse losing employment, or the sudden shift in family dynamics when spouses and children are cooped up at home.

This is where an experienced family lawyer can help, namely in drafting up a marriage contract, otherwise known as a post-nuptial agreement. These agreements are written contracts made by spouses (after marriage) that set out how they want to move forward, as well as the legal rights and duties of each spouse if the relationship ends. Examples of things that might go into such a contract are:
•    Domestic responsibilities
•    Parenting responsibilities
•    Management of finances (e.g., who uses certain back accounts)
•    Division of property and debt if the marriage ends
•    Spousal support if the marriage ends
So, before deciding you need to end your marriage ask yourself if it is worth sitting down with your spouse to talk about expectations. A family lawyer can help you condense your expectations in writing to make a legally binding marriage contract.
If you have questions about drafting a marriage contract, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward during this uncertain time.

Darren Schmidt maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.

June 17, 2020

Witnessing land title documents during a pandemic

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Under the Land Title Act of British Columbia, individuals must execute certain real estate documents, including title transfers and mortgages, in front of a lawyer or notary. In response to the COVID-19 pandemic, the Land Title and Survey Authority of British Columbia (the “LTSA”) is temporarily allowing lawyers to remotely witness land title documents provided certain procedures are followed:

The client must show unexpired photo identification and the lawyer must be satisfied that the individual on video is the same as the identification shown. The lawyer must take a screenshot of the front and back of the identification;
The lawyer and the client must compare the document they are about to sign to confirm both parties have an identical copy;
Every page is to be initialled in the bottom right corner by both parties;
The document is signed by the client and witnessed by the lawyer;
The client delivers the document to the lawyer electronically;
The lawyer confirms that it is an exact copy of the document in his/her possession; and
Once the counterpart signatures are attached, the lawyer completes a certificate stating that remote witnessing was necessary because it was impossible or unsafe for COVID-19 medical reasons to be physically present with the client.

Krystin Kempton is a Partner at Nixon Wenger LLP where she has a general solicitor’s practice, advising corporate and individual clients on corporate and commercial transactions, lending and borrowing, wills and estates and real estate matters.

May 21, 2020

COVID-19 Related Changes to the Employment Standards Act

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There have been some important changes to the Employment Standards Act in the wake of the COVID-19 pandemic. These changes include an extension to the temporary layoff period, a new COVID-19 related leave, injury and illness leave, and further word on the threshold an employer must meet to be exempt from providing notice or pay in lieu upon termination of an employee whose job is no longer available due to COVID-19. These changes are relevant for many of the local employers faced with slowdowns and economic hardship arising from the current shutdowns.

For employers that conducted layoffs when the COVID-19 related shutdown started, the extension of the temporary layoff period from 13 to 16 weeks in a 20 week period means you may be able to avoid letting go of employees whose jobs are still not available. It is expected that this change is to be time limited and that it will be repealed when no longer needed.

Despite this change, non-unionized employers would do well to remember that, except for a few exceptions, they still require a contractual right to lay employees off. Where an employer lays an employee off without the contractual right to do so, there is risk that the employee will consider themselves constructively dismissed. Before laying off anyone on your team, we recommend contacting an employment lawyer to discuss your options.

Another change of note from last month is that a COVID-19 related leave has been introduced in British Columbia. This change creates an entitlement for employees to obtain a job-protected, unpaid leave. This leave is available to employees who are ill, quarantined, or who are caring for a child or dependent. Employees who are unable to return to work due to travel restrictions also qualify for COVID-19 related leave. Employees may also qualify for this leave where their employer has directed them not to work due to concern about exposure to others. While employers may be entitled to verification that the employee meets any of the above criteria, it is not open to an employer to require their employee to get a medical note.

While perhaps less directly a result of COVID-19, another development to note is that the Act has been amended to include up to three days unpaid but job-protected leave for employees who can’t work due to illness or injury.

While strictly speaking not a change to Employment Standards Act, a noteworthy update has been made to the guide available on the Government of B.C. website for the Act. This update provides clarity for those wondering whether they still owe termination pay to dismissed employees where that dismissal was due to a work shutdown caused by COVID-19. An important exception to the length of service and group termination pay obligations of employers under the Act is found in section 65(1)(d) which exempts employers from having to make such payments where an employee’s continued employment “is impossible to perform due to an unforeseeable event or circumstance…” This provision in many ways mirrors the common law principle of frustration. The guide sets a high threshold for the exemption to apply, requiring that the conclusion of employment be due to COVID-19 and noting that “if the employee’s work could still be done (perhaps in a different way, such as working from home) the exception would not apply.” This language means that the circumstances in which section 65(1)(d) works to protect an employer from liability for length of service and group termination pay will be limited.
Dan Draht has a civil litigation practice which includes property litigation, employment law, and other business or commercial disputes. His practice also includes personal injury litigation and other tort related disputes.

May 14, 2020

Update on Co-Parenting during COVID-19

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Beginning in March, 2020, the British Columbia provincial government imposed social distancing directives to reduce the spread of the novel coronavirus.

One consequence of social distancing is that separated parents have had to figure out if, or how, to exchange their children between households. This has become even more difficult as the various courts in BC have suspended regular operations. The courts are currently only hearing essential and urgent matters by videoconference or telephone.
Over the last few weeks there have been a number of reported court decisions in British Columbia regarding urgent parenting issues during the pandemic. We’ll take a look at a few of these cases to provide a sense of how the courts are dealing with co-parenting at this time.

•   On April 1, 2020 the BC Provincial Court released its decision: V.C.S. v. T.S., 2020 BCPC 60. The father, from Prince George, sought the return of his two children their mother’s home in Pitt Meadows (a 750 kilometer drive from Prince George). The children were visiting with their mother in Pitt Meadows during spring break. The mother refused to return the children as she was fearful of driving with the children and visiting public locations such as gas stations, restaurants, etc. with the children. The judge found that using businesses like gas stations posed a limited risk but said, “despite that risk, I note the health authorities have not sequestered everyone to their houses and banned all public outings. Rather, safety protocols have been implemented to mitigate the risk of transmission.” (paragraph 16). The judge went on to say that the mother could follow some simple measures to reduce the risk of entering businesses, such as standing away from others, washing hands in the bathroom, and even said “the children could be given disposable gloves or towelettes to use as makeshift gloves when making contact with handles, lids, and paper rolls in the course of using the washrooms. They can lay down a toilet paper lid before they sit. They can wash their hands thoroughly upon completion.” (paragraph 22). The children were ordered to be returned to their father.

•   Also on April 1, 2020, the BC Provincial Court issued its decision: N.J.B. v. S.F., 2020 BCPC 53. In this case, the father asked the court to suspend the mother’s parenting time with their child. The father was concerned that the mother would not obey the social distancing directives and expose the child to the virus. The court relied on an expert psychologist’s recommendations (Dr. Michael Elterman) respecting co-parenting during COVID-19. The judge noted that Dr. Elterman has considerable expertise in child matters “and is well known to this court.” (paragraph 27). The judge set out Dr. Elterman’s recommendations and said they “should form part of decisions regarding parenting arrangements,” which include:

(1) If a parent has had contact with an infected party, they should disclose this immediately to the other parent.
(2) If the parent is infected or even ill with symptoms or needed to be tested for Covid-19, they should not take the child.
(3) If the parent is in a home with older family members or friends or with individuals who are immune-compromised, the child should not be in that home.
(4) There should be no play dates and the child should not be taken to family or social gatherings.
(5) If parenting time is to occur in a public place such as a community centre, a mall or a restaurant, then it should be suspended.
(6) If a supervisor is required and who is not the spouse of the parent and living in the home, then the parenting time should be suspended.
(7) If either parent or anyone in the household is in an Essential Service or still working with the public, eg. doctors, nurses, at a supermarket or pharmacy, flight attendant, etc.) then this can represent an increased risk to the child. (paragraph 28).
The court in N.J.B. clearly stated it will require more than mere allegations that a parent will not follow social distancing directives. Rather specific examples and evidence are required in order to suspend one part’s time with the children (paragraph 31, citing an Ontario case: Riberio v. Wright, 2020 ONSC 1829). The court in N.J.B. concluded that the father had not proven that he mother had done, or would do, anything to increase the risk of the child contracting coronavirus and he was, accordingly, ordered to follow a prior order.
If you have questions about an urgent parenting concern, or any other family law matter, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward during this uncertain time.
Darren maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.

April 26, 2020

Preparing for Your Estate Planning Meeting

Real Estate, Wills and Estates, Business Law, Blog

Estate planning is an important part of protecting your family and loved ones in the event of your death or loss of capacity. It is always a good idea to consult with a legal professional who can advise you on your rights and obligations and help you prepare your Will and incapacity planning documents. Below are some things to think about before meeting with a lawyer or notary:

Will:

1. What are your general objectives? What do you want to achieve? What do you want to avoid? For example, you may wish to ensure your spouse and children are looked after and reduce the impact of taxes.

2. Who do you want to appoint as executor of your Will? This is the person who will administer your estate. Often spouses are appointed as executor since your spouse likely has the most knowledge of your assets. Make sure to speak to your intended executor(s) in advance to make sure he or she is willing to act. Being an executor is not a fun job and naming a person as executor does not mean that person is obligated to take on the role. Consider who you would like to appoint as an alternate executor if your first choice is unable or unwilling to act as your executor.

3. Consider whether you will gift any specific assets or cash to a particular beneficiary or beneficiaries – for example, a cash gift of $1,000 to a close friend or your jewellery to a granddaughter. Please keep in mind that assets will change over the years.

4 The residue of your estate is everything that is left after payment of debts, funeral expenses, executor’s fees, taxes, legal and other expenses incurred in the administration of your estate, and following any gifts of specific assets or cash, if any. Consider how you want the residue of your estate to be distributed. You should also consider whether you want your beneficiary or beneficiaries to reach a certain age before they receive their share of your estate. Are any beneficiaries disabled and receiving government benefits? If so, it is important to develop an estate plan that does not inadvertently disqualify the beneficiary from receiving those government benefits.

5 If your beneficiary or beneficiaries have died before you, what happens to their share? Will it go to that beneficiary’s children, if they have any children alive on the date of your death? Will it go to a different beneficiary? For example, you may wish to leave everything to your spouse if they survive you. If your spouse has died before you, you may state that his or her share will be evenly distributed among your children (if any). What happens if one or more of your children have died before you? Do you want that child’s share to pass to his or her children or do you want that child’s share to be divided among his or her siblings who are still alive at the time of your death?

6. How would you like your estate distributed in the event of a family tragedy where all of your beneficiaries have died before you or at the same time as you? Will your estate go to your parents? To your siblings? To a charity? To a friend?

In British Columbia, the Wills, Estates and Succession Act (“WESA”) is the governing legislation about wills and estates. Under WESA, spouses (both legal and common law), as well as natural and adopted children, can apply to court to vary the Will of a deceased spouse or parent if the Will does not make adequate provision for his or her proper maintenance and support. The court may disregard the wishes of the deceased if the reasons for disinheritance are not rational or reasonable. The court may amend the distribution to one that it thinks is fair in the circumstances.

Power of Attorney

A power of attorney grants someone else the right to act on your behalf with respect to your financial and legal affairs. It is important to appoint someone you trust because the power of attorney is basically like a permission slip for that person to manage your assets. Once you grant someone power of attorney, they become known as your “attorney.” The scope of the authority can be as broad or as specific as you like. You may allow your attorney to manage all aspects of your financial and legal affairs indefinitely, or you may wish to restrict it to specific tasks or dates. The right to act as your attorney may be effective immediately or only in the event you have lost mental capacity and are incapable of managing your own affairs. It is important to include language in the power of attorney that the authority continues despite your loss of mental capacity in order to make it an “enduring” power of attorney.

Consider who you would like to appoint as your attorney and who you would like to appoint as an alternate attorney if your first choice is unable or unwilling to act. Consider whether you would like your attorney’s authority restricted in any way and when you would like the attorney to be able to start acting on your behalf.

Representation Agreements

A representation agreement is a legal document appointing someone to assist you or act on your behalf for health care and personal care matters. This tool gives someone the right to give consent or refuse to give consent on your behalf, if you are unable to do so yourself, to minor or major health care (including decisions about medication, tests, surgery and end of life comfort care) and the right to make decisions about your personal care, such as living arrangements, diet, clothing, exercise, taking part in activities and personal safety issues. Enhanced representation agreements include end of life decisions and give your representative the authority to refuse life support under certain circumstances.

Having a representation agreement ensures that someone you trust will have legal authority to carry out your wishes if you are incapable of giving or refusing consent. By setting out your end of life decisions in the agreement, you may provide comfort and ease the emotional anguish of those who have to decide whether life support measures should be continued or withheld.

Consider who you would like to appoint as your representative and who you would like to appoint as your alternate representative if your original representative is unable or unwilling to act. Consider whether you want life support measures continued or withheld (i) in the event you are terminally ill with no chance of recovery; and (ii) in the event you are in a permanent vegetative state with no chance of recovery. Consider whether you would want medicine administered to you in your terminal state even if it hastens your death.

Krystin Kempton is a Partner at Nixon Wenger LLP where she has a general solicitor’s practice, advising corporate and individual clients on corporate and commercial transactions, lending and borrowing, wills and estates and real estate matters.

April 23, 2020

How does Occupiers Liability apply during the COVID-19 pandemic?

Real Estate, Business Law, Litigation, Blog

In British Columbia, the Occupiers Liability Act, RSBC 1996 c 337, sets out the legal obligations that occupiers owe to people visiting their premises. Occupiers can be individuals or businesses who are in physical control of the premises, or those who have responsibility for, and control over, the condition of the premises, the activities conducted on the premises, and who is allowed to enter the premises. This can include business owners, landlords, tenants, and home owners.
Occupiers owe a legal duty to ensure visitors are reasonably safe in using their premises. This duty applies to the condition of the premises, activities on the premises, or conduct of others on the premises. It is important to note that there are many factors to assess when determining where the responsibility falls in the event of injury or loss. How far this duty extends will depend on the circumstances of each situation.
You may be wondering: how does this apply during a pandemic and the current context of COVID-19?
Generally, the liability of occupiers remains the same. However, be aware that occupiers may be found liable for the spread of the virus at their premises. If an occupier fails to take reasonable care to respond after a person known to have been infected with COVID-19 attended the premises, the occupier may well have breached its legal obligations under the Occupiers Liability Act.
Reasonable response efforts to ensure the safety of visitors may include:
•    immediate sterilization of the premises;
•    closure of the premises during sterilization efforts; and
•    clear and timely warnings to visitors and employees.

It is important for occupiers not to ignore applicable privacy laws in these circumstances. While appropriate information may need to be shared, specific names should not be released.

Occupiers should also consider having a formal COVID-19 plan in place that sets out response efforts in the event of virus exposure.

We stress that all cases are fact specific. The information above is intended to provide some guidance during these uncertain times. You should obtain legal advice specific to your situation if you have had a potential exposure at your premises or if you have been exposed to the virus while attending premises.

Allison is an Associate in the Civil Litigation practice group at Nixon Wenger LLP. She has a general civil and commercial litigation practice, with an emphasis on tort related disputes, contract disputes, personal injury litigation, employment matters, and maritime, shipping, and environmental law. Allison has represented clients at all levels of court in British Columbia, and works with her clients to find solutions that work best for them within the litigation process.

April 9, 2020

What is a Power of Attorney and Why Do I Need One?

Real Estate, Wills and Estates, Family Law, Business Law, Blog

What Incapacity and Estate Planning Documents Do I Need?
We recommend you have a Power of Attorney, Representation Agreement, and Will.
What Is a Power of Attorney and Why Do I Need One?
A Power of Attorney is a legal document that you can use to appoint a trusted person(s) to make financial and legal decisions for you, in the event you are incapable of doing these things yourself while you are alive. The person you appoint is called your “attorney”. You can give your attorney broad powers to step into your shoes as needed to deal with your finances and your real estate or your business and legal matters, OR you can place limits on the power that you give them. A Power of Attorney is a valuable part of your estate and incapacity planning.
Who Should I Choose as my Attorney?
You should appoint someone you trust because a Power of Attorney is a powerful document. Many people choose their spouse, a close family member or friend. A person does not have to agree to act as your attorney, so you should talk to them ahead of time and make sure they are up for taking on the job.
You can appoint more than one attorney, with different or the same authority. If you appoint more than one, they must act unanimously unless you state otherwise.
What Are the Duties of My Attorney?
The Power of Attorney Act of B.C. confirms that an attorney must act honestly and in good faith, must exercise the care and skill of a reasonably prudent person, keep proper records for inspection, keep your assets separate from your attorney’s assets, and always act in your best interests.
Does a Power of Attorney Allow my Attorney to Make Health Decisions For Me?
No. If you want to appoint a legal representative to make personal and health care decisions for you if you cannot make these decisions on your own, you will need to make a Representation Agreement.
Can I Cancel my Power of Attorney if I Change My Mind?
Yes. As long as you are mentally capable, you can revoke/cancel a Power of Attorney.

We at Nixon Wenger LLP specialize in estate and incapacity planning. Please contact us and we would be happy to help you prepare a Power of Attorney as part of your complete estate and incapacity plan.

Elise Allan is a Partner at Nixon Wenger LLP who works extensively with individuals, assisting them in such matters as the purchasing and selling of real estate, preparing Wills, Powers of Attorney and Representation Agreements as well as obtaining Grants of Probate.

April 7, 2020

Force majeure: Can Covid 19 release you from your contract obligations?

Real Estate, Business Law, Employment Law, Litigation, Blog

Under general principals of contract law, a party has a defense against performing under a contract where that performance becomes impossible due to unforeseeable events outside of the parties’ control. If disaster strikes, a non-performing party can resort to a claim of “force majeure”, sometimes called “acts of God”, to forgive them from living up to their responsibilities.

A pandemic can be one of those events. Some commonly listed force majeure events include natural disasters such as floods, earthquakes, or hurricanes; war; terrorist acts; government action such as expropriations or changes in laws; union activities such as strikes and slow-downs; shortages of necessary materials… and, if the contract provides for them, also epidemics and quarantines.

General economic conditions are not force majeure events. Governmental restrictions may qualify, if directly related to the force majeure event, and if they directly relate to the alleged breach of contract, but reduced demand and business are usually found to be more a fact of life than an act of God:

While relatively few cases have interpreted the impact of pandemic on force majeure clauses, previous cases do offer some guidance. Courts have found that generalized economic hardship or increase in expenses, without more, does not constitute a force majeure event. As a result, it will be difficult to avoid an obligation to purchase goods or services merely because customer demand has decreased. Also, even if an unforeseeable and extreme disaster occurs, a contract’s force majeure provision will still control with regard to the parties obligations and may override other common law defenses used to avoid performance. For this reason, it is imperative that companies read contracts closely, or consider engaging counsel, to determine what rights they have before acting (or not acting) on a contract. Finally, courts are split as to whether intervening governmental acts (such as changes of regulations, emergency declarations, etc.) will excuse performance under contract, but the contract itself will still likely control as to which party bears the risk of the nonperformance.

National Law Review: COVID-19: Force Majere Event? March 19, 2020

If a contract’s force majeure clause includes terms such as “epidemic” or “quarantine” or “pandemic”, then the clause can be invoked during the current Covid-19 crisis to avoid living up to contractual responsibilities that have been rendered impossible. Even if a contract has a force majeure clause that does not include such terms, it may still be possible to defend against an action for breach relying on the force majeure clause, if the language of the clause is broad enough to encapsulate disasters such as pandemics.

However, in any case where such a clause is invoked, in order for the defense to work, the party invoking it must also show that they took steps to mitigate the damage and that full performance was truly impossible – together with any other contractual obligations that might be necessary to adhere to when invoking the clause.

If there is no force majeure clause at all, or if there is no reasonable way to bring the COVID-19 pandemic within the terms of the force majeure claus, then there still will be defenses to breach or non-performance on the commonlaw bases of impossibility or frustration of purpose.

All of these defenses are pretty strict. The general principle of contract law is that the parties to an agreement assume the risk of their own non-performance unless the contract itself says otherwise. In order to claim impossibility or frustration, the defending party has to show that the event offends, in a way that was unforeseen to the contracting parties, a foundational assumption of the agreement. For instance: if the subject matter of the contract turns out to be non-existent, then the contract will be impossible to perform. However, it is not a basic assumption of the parties that market conditions or financial situations will remain favourable to the parties.

In this case the event is a global pandemic. The problem with pandemics (well, one of the many problems with pandemics) is that they only indirectly affect businesses. A pandemic is not that kind of natural event that destroys infrastructure or physically prevents businesses from operating. Instead, it is the social and governmental response to the pandemic that has the effect of interfering with business viability. Laws that are changed to address it are laws of general application that only affect your ability to live up to your contracts.

At the end of the day: contracts are enforceable. Rent is payable. If rent is not paid, that is a breach of contract. Force majeure is a defense available to a claim for that breach. As identified above, general economic effects do not constitute a force majeure event.

Unless the contract specifically defines pandemic as a force-majeure escape hatch, it seems unlikely that it would be considered one.

However, the global nature of the coronavirus crisis lends itself to other practical considerations. Unless there are particular circumstances that are quite significantly different than those being faced by most businesses today, it may not be in anyone’s business interests to force strict compliance with contracts right now. After all, if all contracts are strictly enforced, that may have uncomfortable effects on the very parties who insist on strict enforcement:

As the COVID-19 pandemic continues to develop, businesses should take proactive steps to ensure continuity of operations sufficient to meet existing contractual obligations and evaluate whether their counterparties are doing the same. If companies expect that COVID-19 may result in their own or their counterparties’ inability to satisfy contractual obligations, they should assess the viability of either force majeure or common law principles of nonperformance excusal. This assessment may also be rendered more complicated by the fact that many companies will be on both sides of this issue, as the performing party in some cases or the receiving party in others… Businesses may wish to avail themselves of a force majeure clause or the common law principles in connection with certain contracts, but resist such a claim by their counterparties to other contracts. Companies will therefore need to be mindful of the broader implications of asserting these provisions and principles.

P.Weiss: Force Majeure under the coronavirus Pandemic: March 16, 2020

COVID-19 related contract breaches will cut in all directions. If you insist on strict compliance with others, they may insist on strict compliance with you.
Andrew Powell practices a wide range of civil litigation with a focus on business or commercial disputes, including breach of contract, lease and land use issues, corporate disputes including liquidations and shareholder issues, and realization and enforcement. Andrew also practices estate litigation, including wills variation claims.

March 28, 2020

Employment Issues During COVID-19

Business Law, Employment Law, Litigation, Blog

The COVID-19 pandemic has created unprecedented circumstances for Employers and Employees. Many people have questions with respect to their rights as Employers and Employees, and, particularly for Employers, potential liabilities.

The British Columbia Employment Standards Act sets out minimum standards that employers must adhere to. COVID-19 does not change or suspend statutory rights or obligations. Failure to adhere to these standards may result in claims against Employers and even personal liability for directors and owners of companies. Being pro-active and getting good advice now can help avoid problems and encourage creative and pro-active solutions to preserve goodwill and morale in the workplace, and to make the best of a bad situation for all.

Don’t be fooled by one size fits all solutions. Each situation is different and requires careful review and planning.

Don’t get caught out. Call for assistance.

March 27, 2020

COVID-19, Child Support and Layoffs

Family Law, Employment Law, Litigation, Blog

When parents separate, their children are entitled to child support. The Child Support Guidelines set out how child support is determined.

The amount of child support depends on the income of the parent who pays the support, or both parents’ incomes if they share time with the children. If income goes up, or down, normally this will result in an adjustment to child support payments.

What Happens to Child Support if the Parent Paying Child Support Loses His / Her Employment?

The COVID-19 pandemic has had a significant impact on all of our lives. Most sectors of the economy have been affected and many businesses and employees will face a significant decrease in earnings.

So, what happens if a parent is laid off or terminated from their job during the COVID-19 pandemic but has been paying child support?

All parents in British Columbia should be aware that as of March 20, 2020 the various courts in this province have suspended regular operations. Accordingly, child support disputes likely will not be heard by the courts until they resume regular operations following the COVID-19 pandemic. Thus, parents are encouraged to find a workable solution to any child support disputes during this time.

If you are paying child support and find yourself laid off or terminated from your employment, the best course of action is to immediately inform the other parent. Be open and transparent and let them know if you will be receiving any of the benefits offered by the provincial or federal government, such as employment insurance. Try to find a mutually agreeable solution so that you can still pay some support rather than stopping support altogether.

If you are paying support payments to the Family Maintenance Enforcement Program (FMEP), also inform them if your employment status changes. On March 19, 2020, FMEP posted the following update on its website in regards to the COVID-19 pandemic:

“If you are a payor, we acknowledge you may have difficulty [during the COVID-19 pandemic] paying your full amount of maintenance that is due. You are, however, still required to pay the maintenance owing under your order or agreement. If you are unable to make full payments it is very important that you contact us by signing into your web account and sending a web message …” https://www.fmep.gov.bc.ca/whats-new/

If you are concerned about paying or receiving child support payments, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward in this uncertain time.

Darren maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.

March 24, 2020