COVID-19 has impacted many businesses and employees, but the issue of its impact on income for the purposes of spousal and child support has only recently been explored. A recent decision suggests that the pandemic may be a consideration for determining a spouse’s income.
In Small v. Small, 2020 BCSC 707, the trial was heard over eight days in October 2019 and in January 2020, but the judgment was rendered on May 7, 2020, in the midst of the current pandemic. The Court found that each party’s income was to be determined at the time of trial, but decided to give leave to the parties to apply to have their incomes re-determined based on post-trial events.
In Small v. Small, the mother was a yoga instructor and courier for a food delivery service and the father worked as director of sales for a technology company. The issues to be determined at trial were child support, spousal support, and property division. Given that the COVID-19 restrictions were not in place at the time of trial, there was no evidence led about the impact of this as yet unknown pandemic in Canada. The Court, however in its reasons in May 2020 indicated that COVID-19 may be a factor in determining a party’s income:
[209] Before turning to consideration of the income to be imputed to the respondent, I must comment on the impact of the COVID-19 pandemic on the issue of prospective support. This trial concluded at the end of January 2020. Since that date, there have been public health directives that have greatly restricted business operations in British Columbia, including the mandatory closures of fitness centres and yoga studios. There is no present indication of when such restrictions might be lifted.
[210] These events do not form part of the trial record, and I have no evidence before me as to the impact, if any, of the COVID-19-related restrictions on either parties’ income. However, I am being asked to determine income in a manner that will influence the parties’ future financial positions. I do not think it appropriate to simply ignore post-trial events, of which I can take judicial notice, that suggest there might already have been a material change in circumstances for one or both parties since the trial concluded.
[211] I will therefore determine each party’s income as of the time of trial. However, I will also give leave to either party to apply to have their income re-determined based on post-trial events. Hopefully this judgment will provide sufficient resolution of the issues in dispute between the parties that they can consensually resolve any remaining controversies. However, in the interests of justice and fairness, in my view both parties should have the opportunity to return to court to ensure that any prospective support orders reflect any COVID-19-related impacts on their incomes that are of more than a temporary nature.
In this case, the COVID-19 restrictions arose well after the trial occurred but before judgment was rendered, so there was no evidence before the Court of its impact on the parties’ income. Although the Court made the order based on the evidence at trial, it opened the door for more current evidence to re-determine income based on the impact of the pandemic on either party’s income.
While courts may not consider the impact of COVID-19 for trials occurring before the pandemic, parties may have the opportunity to apply to re-determine their income based on the impact of the pandemic. The impact of COVID-19 may be considered a “material change in circumstances” since the trial warranting a variation.
Based on the principles laid out in Small, it is possible that, with the right evidence before it, a court may find that the impact of COVID-19 affects a party’s income for the purposes of support and vary an order made pre-COVID-19.
