Moreton v Inthavixay 2020 ONSC 4881: This decision relates to the father’s request to reduce the amount of child support he was to pay because he lost his job due to the pandemic. However, it is also the most recent episode in a family law dispute that has been in litigation for three years, with a total of 13 court appearances and 4 virtual court appearances.
While there have been different parenting arrangements in place over those three years, at the time the father brought this motion (May 2020), the parents shared time with the children on a roughly equal basis. The father was paying $1,000/month in support, which had initially been designated spousal but was then characterized as child support.
The mother opposed the father’s motion and cross-motioned for various other relief, including an increase in the support amount and her costs.
Both parties were unrepresented.
The father is a commercial digital artist, and it was on his income in 2019, when he had a full-time job working in his field, that the amount of support was calculated. However, he lost his job in April 2020 because of the pandemic. After that, he collected EI which, of course, provided substantially less income that he had received when he was employed. He pursued a number of other employment possibilities, eventually obtaining a short-term contract to do work that met his qualifications.
The mother was unemployed. She receives ODSP for an undisclosed medical disability that she says means she cannot work either part- or full-time.
The father met all of his child support obligations, even when he was reliant on EI.
Justice Kraft found the father’s loss of employment was through “no fault of his own,” and that his evidence about his income, his attempts to find work and his ongoing payment of child support to be credible and supported by evidence.
In coming to her decision, Justice Kraft found that the amount of child support the father should pay should be based on the father’s current income and that income should not be imputed on an interim basis. She noted that the father’s loss of employment constituted a change in circumstances that justified a reduction in the amount of support to be paid:
“Many areas of the economy have suffered as a result of the COVID-19 pandemic. The father was laid off from his employment due to COVID-19. Through no fault of his own, he found himself unemployed as of April 2020. The father’s evidence demonstrates that he took steps to find alternate ways to earn income. . . . [T]he fact that the father took steps to find employment when he continues to be entitled to collect EI demonstrates that he takes his obligation to pay child support seriously. . . . I decline to impute income to the father , . . The is not a case where the father is intentionally unemployed. . . .The evidence is clear that the father has taken all steps possible to fulfill both his parenting roles and his obligation to support his children.”
After establishing a range for the father’s income, Justice Kraft determined that, according to the Child Support Guidelines for Ontario, he would be obliged to pay child support in the amount of $991/month. However, since the children were spending roughly equal amounts of time with both parents, his child support obligation had to also take into account the mother’s monthly income of $354, reducing the father’s payment to $647/month ($991 – $354).