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March 20, 2020

Family Relations

COVID-19 Pandemic Resource III

The COVID-19 pandemic poses challenges to families with shared custody arrangements and puts new stresses on interpersonal relations. This resource sets out points for families to consider. 

Temporary Loss of Income

The economic effects of the pandemic are considerable. Individuals with support obligations could face significant and long-lasting changes to their income. Individuals seeking to change their support arrangements in the face of this new economic landscape should consider the following:

  • In Manitoba, the Family courts are only available for emergency matters until at least April 14. Variation of a court order on account of a change to income will not be considered an emergency at this point in time.
  • To date, the Maintenance Enforcement Program has not provided any communications to counsel, and it is expected that support obligations will continue to be enforced in the usual course.
  • If support is being enforced by a Maintenance Enforcement Program, both parents can enter into an “Agreement to Change Child Maintenance Obligations,” which is effected by completing and submitting a form. This action does not change the amount of the child support obligation but does change the amount subject to enforcement under the program. Arrears will begin and continue to accrue if there is a difference between the support obligation and the new agreement. Both parties should be aware that each of their consent will be required for the Maintenance Enforcement Program to return to enforcing the original support obligation.
  • Many separation agreements provide for readjustment of support based on the previous year’s income tax returns. The same is true for child support that is recalculated using the Child Support Recalculation Service. This is not a perfect solution, as the relief is delayed to next year.  While delayed, such agreements do provide for adjustments based on year over fluctuations in income

If parents are paying support to one another without the assistance of a Maintenance Enforcement Program, they could agree—in writing and upon receipt of confirmation of each parent’s income going forward—to temporarily adjust child support payments based on their new income and the Manitoba Table of the Child Support Guidelines. This approach requires cooperation between the parents, and it could result in a “double discount” to the payor. The recipient should be aware that the payor would be paying a reduced amount now despite their previous year’s income and then a reduced amount the following year as a result of this year’s reduced earnings.

The hard truth is that parents, despite unforeseen fluctuations in their income, must do everything they can to prioritize and pay support obligations. The courts are not available to provide the usual tools for variation, and few alternatives are at hand.

Custodial Arrangements

Even under normal circumstances, the Family Court will only consider emergent motions in very narrow circumstances, which may include immediate or imminent risk of harm to a child or removal of a child from Manitoba.  The Court has recently clarified that “imminent risk of harm” may include situations where one parent has abruptly, unilaterally and without explanation or apparent justification, completely cut or virtually eliminated all access and/or contact between the other parent and the child(ren).  It may be possible for the Courts to hear emergency applications to a change in status quo regarding children, provided that change meets the requirements herein as set out by the Court. 

Parents are encouraged to keep lines of communication open in these uncertain times, and to consider their mutual obligation to advise one another of past or contemplated international travel, contact with infected parties, positive test results and how these events may impact upon their child(ren)’s well being and care and control schedule.

It is strongly recommended that parents do not travel outside of Winnipeg without consulting counsel.

Anyone concerned about the impact on COVID-19 on their custodial and care situation should work with counsel to discuss what options might be available. As with support, parents must do whatever they can to ensure custodial arrangements and related court orders are respected.

Child Protection Agencies

Of concern at the moment is whether child protection agencies are suspending visits to children in care as individual workers self-isolate and the availability of social workers and other agency employees is impacted. The Manitoba Department of Families has recently advised that agency workers will need to make case management decisions about what is in a child’s best interest, in line with current advice from provincial public health officials. Delays and additional sanitary pre-cautions are to be expected and are likely unavoidable in the current climate.

Eldercare

Care homes for senior citizens are potentially the most vulnerable facilities to the effects of the pandemic. They are under scrutiny from clients and their families both to keep the highest standards of care, cleaning, and sanitary measures; and conversely to alleviate the psychological burden of isolation by allowing family to visit clients on very restrictive terms. We anticipate that care homes will be granted very broad lenience by any authority in their decision-making and the courts, in Manitoba at least, will not be available to hear applications governing the care of elders unless the circumstances are grave and immediate.  

We are available

Fillmore Riley’s family law practice can advise you on changing dynamics in your family relations on account of the pandemic. Our key contacts are:

Norman Yusim normyusim@fillmoreriley.com

Marcelin Murray mmurray@fillmoreriley.com

Marni Karpiak mkarpiak@fillmoreriley.com

Amanda Karalash Toker aktoker@fillmoreriley.com

Sarah Thurmeier sthurmeier@fillmoreriley.com

Jessica Isaak  jisaak@fillmoreriley.com

With a report from Jessica Isaak.

 

 

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