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This chapter provides an introduction to the problem of arrears. It will briefly discuss the reduction and cancellation of arrears, as well as the means available to collect arrears of child support. Introduction If child support is owing under a court order or a family law agreement, the failure to pay that support constitutes a breach of that agreement or a breach of that order, and, in the case of orders, possibly contempt of court as well. Both the courts and society as a whole place a high value on the financial support of children, and both take an extremely dim view of anyone who defaults on such an obligation. In family matters, the courts are primarily concerned with the welfare of the children, and as such the interests and needs of the parents often take a backseat to the needs of their children. A person who owes arrears of child support will likely be interested in the ways that the outstanding amount can be reduced, while a person to whom support is owing will be interested in collecting on the arrears. Because it is the children who suffer when money is owing, the person who owes arrears will generally have a very difficult time convincing a court to forgive all or some of the debt. On the other hand, collecting arrears can be a very difficult task on the basis that you can't get blood from a stone. Unless the payor, the person owing the support payments, has another source of funds to draw upon, often the recipient, the person to whom the money is owed, must face the fact that the outstanding support will never be paid. Nevertheless, it is possible for the payor to have his or her arrears reduced and, sometimes, cancelled. At the same time, recipients have some very powerful and effective tools available to them that can help to collect on outstanding arrears of support. Orders for Support Orders for support are enforceable because they are orders of the court. Someone who breaches a court order can be punished for contempt of court. Since orders for support are monetary in nature, arrears can also be enforced as a judgment debt for a period of 10 years after the monthly payment of support is no longer required. Payors can apply for an order reducing arrears that have accumulated under an old order under both the Divorce Act and the Family Relations Act. Any such application must be made using the act under which the last support order was made. Agreements for Support Arrears that have accumulated under a family agreement are essentially debts owing as a result of a contractual obligation to provide support. A separation agreement is, after all, a contract and can be enforced in the courts just like any other contract. Agreements for support are most easly enforced after they have been filed in court, which gives them the effect of a court order. While they can still be enforced as contractual obligation, it's a lot simpler to file them in court. Section 121 of the Family Relations Act allows for agreements to be filed in the Provincial (Family) Court, and s. 122 allows for them to be filed in the Supreme Court. Payors can apply for an order reducing arrears that have accumulated under an agreement that has been filed in court under the Divorce Act, if the parties were married, and under the Family Relations Act, regardless of whether the parties were married. Back to the top of this chapter. The Reduction and Cancellation of Arrears A payor may make an application to have his or her arrears cancelled or reduced; technically, this is an application to vary an order or agreement for child support. Arrears under the Divorce Act In the case of orders or applications made under the Divorce Act, a payor will rely on the terms s. 17 of the act, which provide, in part, that: (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) a support order or any provision thereof on application by either or both former spouses; or(b) a custody order or any provision thereof on application by either or both former spouses or by any other person. (3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. The Divorce Act does not deal expressly with arrears; applications under the act to reduce arrears are simply variation applications. The test the court will apply is similar to the test it applies for orders made under the Family Relations Act, described below. Arrears under the Family Relations Act Unlike the Divorce Act, the Family Relations Act deals with the question of arrears directly. Section 96 of the act says that: (2) If an application is made to reduce or cancel arrears under a maintenance order, the court may reduce or cancel the arrears but only if it is satisfied that it would be grossly unfair not to do so. (3) For the purpose of subsection (2), the court may take into consideration (a) the efforts the applicant has made to comply with the maintenance order,(b) the applicant's explanation for any delay in applying for variation of the maintenance order, and(c) any special circumstances that the court considers relevant. (3.1) If the court reduces arrears under a maintenance order, the court may order that interest does not accrue on the reduced amount of arrears but only if, taking into consideration the factors listed in subsection (3), the court is satisfied it would be grossly unfair not to make that order. (3.2) If the court cancels arrears under a maintenance order, the court may cancel interest that has accrued on the arrears under section 11.1 of the Family Maintenance Enforcement Act but only if, taking into consideration the factors listed in subsection (3), the court is satisfied it would be grossly unfair not to make that order. This section of the Family Relations Act has been described as a "complete code" regarding the reduction or cancellation of arrears under that act, meaning that the only ground on which a court can reduce or cancel arears is "gross unfairness," as set out in s. 96(2). The Supreme Court of British Columbia has interpreted "gross unfairness" to mean proof that the payor is not only incapable of repaying the arrears but is also unlikely to be able to repay them in the foreseeable future without suffering severe financial hardship. If you are asking the court to make an order of reducing arrears, you must be prepared to prove that it would be grossly unfair for you to pay the arrears, and you must be prepared to address the criteria set out in s. 96(3):
Be prepared to provide to the court a statement of the whole of your assets and income, and liabilities and expenses, if you intend to show the court that you cannot pay your arrears. Back to the top of this chapter. Collecting Arrears of Support The collection of debts and enforcement of judgments occupies a whole course at law school and is not a simple matter. The provincial government has, however, established an agency responsible for enforcing support obligations, the Family Maintenance Enforcement Program (FMEP). Someone entitled to receive support under an order or agreement can "enrol" in this program and the program will tend to the enforcement support without a great deal of further involvement on the part of the recipient. FMEP is partly financed by charges levied against payors in arrears of support. For the recipient, FMEP offers its services for free. All you have to do is file your order or family agreement with the program and fill out an application form. FMEP will take the matter from there, and the program is authorized by the Family Maintenance Enforcement Act to take whatever legal steps are required to collect outstanding arrears and enforce an on-going support obligation. Under the Family Maintenance Enforcement Act, FMEP has the authority to commence and conduct any action that can be taken by a private creditor, as well as some unique actions that the program alone can take. Among FMEP's collection powers are the following:
It is recommended that you enrol with FMEP if you are having problems with the child support payments you are owed. FMEP will keep an on-going record of payments made, monies owing, and interest accumulating on the monies owing. While it is possible to undertake collection or enforcement proceedings on your own, this is not recommended as it will take money and time, and possibly require you to hire a lawyer, and bear that expense as well. Furthermore, any private collections efforts you make may very well interfere with or frustrate efforts being made on your behalf by FMEP! Note that recipients enroled with FMEP are required to obtain the permission of the program's director before taking action on their own. More information about enforcing orders can be found in the chapter Other Family Issues > Enforcing Orders & Agreements. Also, the Department of Justice has put together a helpful overview of support enforcement mechanisms in Canada. See their website at: justice.gc.ca/en/ps/sup/enforcement/enforcement_overview.html Family Agreements Sections 121 and 122 of the Family Relations Act allow a person to file a family agreement, usually a separation agreement, in the Provincial (Family) Court or in the Supreme Court. It is not necessary for a legal action to have been started before an agreement can be filed. An agreement which is filed in court can be enforced as if it were an order of the court. FMEP will enforce agreements for support, however they require that an original copy of the agreement be filed in court and sent to them before they can enforce the agreement. More information about enforcing agreements can be found in the chapter Other Family Issues > Enforcing Orders & Agreements. Orders made Outside British Columbia Section 20 of the federal Divorce Act provides that an order made in a divorce proceeding has effect throughout Canada. It also provides that such an order may be filed in the court of any province and enforced as if it were an order of the court of that province. In other words, if your divorce order was made in Alberta and contains a term requiring child support to be paid, you can register that order in the Supreme Court of British Columbia and it will have the same effect and be enforceable here as if it were an order of the court of this province. The provincial Interjurisdictional Support Orders Act allows an order for child support made in:
to be filed in our courts and enforced as if it were an order made by a court in British Columbia, once the order is registered in this province. Foreign orders which are filed in this province may be enforced by FMEP as if they were orders made by the courts of British Columbia. Other Family Issues > Enforcing Orders & Agreements. Back to the top of this chapter. Site Navigation
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