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This chapter provides an introduction to the problem of arrears, and a discussion of the reduction and cancellation of arrears is followed by a discussion of the collection of arrears of child support. I. Introduction If child support is owing under a court order or a family law agreement, a failure to pay the support owing is a breach of that order or agreement, and, in the case of orders, 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 the absence of some obviously exculpatory circumstances. 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. A person owing arrears will generally have a difficult time convincing the court to forgive all or some of his or her debt. On the other hand, collecting arrears can be difficult as well, if for no other reason than the fact that you can't get blood from a stone. Unless the payor has another source of funds to draw upon, a recipient may find out that the outstanding support will never be paid. Despite these difficulties, it is possible for the payor to have his or her arrears reduced and, sometimes, cancelled altogether. At the same time, recipients have access to some very powerful and effective enforcement tools to collect outstanding arrears of support. A. Orders for Support Orders for support are enforceable like any other order of the court. Someone who breaches a court order can be punished for contempt of court. Since orders for support require the payment of money, arrears can also be enforced as a judgment debt for up to 10 years after the monthly payment of support is no longer required, usually when the child reaches the age of majority. Payors can apply for an order reducing arrears that have accumulated under a court order under both the Divorce Act and the Family Relations Act. Such applications must be made using the act under which the support order was made. B. Agreements for Support Arrears that have accumulated under a family agreement are owing as a result of a contractual obligation to provide support. A separation agreement is a contract that can be enforced in the courts just like any other contract. Agreements for support are most easily enforced by filing them in court, which gives them the effect of a court order. Although agrements can still be enforced under the law of contracts, 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 under the Family Relations Act for an order reducing arrears that have accumulated under an agreement that has been filed in court. C. The Family Maintenance Enforcement Program Although recipients can enforce orders and agreements for child support on their own, most of the time recipients will give that job to the Family Maintenance Enforcement Program, a provincial government program under the Family Maintenance Enforcement Act which has been contracted out to an American company, Maximus (Themis), not that you'd know this from the government website. FMEP is free for recipients and is largely funded by late fees and penalties charged to delinquent payors. FMEP has no discretion to change the orders and agreements that are filed with it for enforcement, although it will make important, judge-like decisions about who is and isn't entitled to received child support. FMEP cannot increase or decrease the amount of a child support obligation and it cannot reduce or cancel arrears of child support. Back to the top of this chapter. II. 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 the order or agreement for child support under which the arrears accumulated rather than an independent order about the arrears. A. Arrears under the Divorce Act Section 17 of the Divorce Act says this about varying orders for child support: (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. B. 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 court has interpreted "gross unfairness" to mean 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 not just unfair but grossly unfair for you to have to pay off 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 Financial Statement summarizing all of your assets and income, liabilities and expenses, if you intend to show the court that you cannot pay your arrears. Complete financial disclosure is essential. Back to the top of this chapter. III. 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. Someone entitled to receive support under an order or agreement can sign up with 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. FMEP is free for recipients. 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 enforce an on-going support obligation, and track and collect on any outstanding arrears, plus interest accumulating on those arrears. 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:
While it is possible to undertake collection or enforcement proceedings on your own, this will cost money and time and possibly require you to hire a lawyer and bear that expense as well. Since any private collections efforts you might take may interfere with efforts being made on your behalf by FMEP, recipients enroled with FMEP are required to obtain the permission of the program's director before they can take independent enforcement actions. More information about enforcing orders can be found in the chapter Other Family Issues > Enforcing Orders & Agreements and at the website of the Department of Justice, which includes a helpful overview of support enforcement mechanisms in Canada. A. Agreements Sections 121 and 122 of the Family Relations Act allow a party to an agreement, usually a separation agreement, to file the agreement in the Provincial (Family) Court or in the Supreme Court. An agreement which is filed in court can be enforced as if it were an order of the court. It is not necessary for an action to have been started before an agreement can be filed. 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. B. Orders made Outside British Columbia Section 20 of the Divorce Act provides that an order made in a divorce action has effect throughout Canada. It also provides that such an order may be filed in the courts of any province and be enforced as if it were an order of the courts 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 courts of British Columbia. The provincial Interjurisdictional Support Orders Act allows orders for child support made under provincial laws elsewhere in Canada, and in certain foreign states, to be filed in our courts and enforced as if they were British Columbia orders. The reciprocating states under the Interjurisdictional Support Orders Act are South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. 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. See the chapter Other Family Issues > Enforcing Orders & Agreements for more information. Back to the top of this chapter. Site Navigation
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