 | |
| |
|
|
| |
|
|
|
This chapter provides an introduction to dealing with arrears of support. It will briefly discuss the reduction and cancellation of arrears and how orders for spousal support can be enforced, including orders made outside of British Columbia. I. Introduction If spousal support is owing under a court order, the failure to pay support constitutes a breach of that order and, possibly, contempt of court. When support is payable under a family law agreement, the failure to meet that obligation constitutes a breach of that agreement. A person who owes arrears of spousal 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 that outstanding amount. Collecting arrears can be a very difficult task, particularly when the payor doesn't have a lot of income and not a lot of assets that might be sold to pay off the arrears. In a situations like this, recipients must sometimes face the fact that the outstanding support may never be collected. In most cases, however, recipients are able to take advantage of some very powerful and effective strategies to collect the outstanding arrears. The easiest way to collect arrears and enforce an ongoing support obligation is through the Family Maintenance Enforcement Program, a free service run by the provincial government and contracted out to an American company. From the payor's perspective, it is possible to make an application to have arrears reduced and, sometimes, cancelled. While it may prove difficult to convince a court to cancel or reduce arrears, it does happen, particularly when extreme hardship can be shown, together with an explanation for the delay in going back to court and proof that repaying the arrears is an impossibility. 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 spousal support arrears cancelled or reduced; technically, this is an application to vary a spousal support order, even if you don't want to change the ongoing amount of the order. Both the Divorce Act and the Family Relations Act allow a payor to apply to vary a spousal support order, but only the Family Relations Act has a specific rule about applications to vary or cancel arrears. Section 96 of the Family Relations 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, meaning that:
The Supreme Court of British Columbia has interpreted "gross unfairness" as requiring proof that the payor is not only incapable of repaying the arrears and proof that the payor is unlikely to be able to repay them in the foreseeable future. If you are asking the court to make an order of this nature, you must be prepared to provide evidence 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 describe the whole of your assets and income, liabilities and expenses for the court in order to demonstrate that you cannot pay your arrears. While only the Family Relations Act sets out the rules relating to the reduction or cancellation of arrears in such detail, the same sort of considerations will be taken into account in an application to cancel arrears under the Divorce Act, except for the rule about proving "gross unfairness." Note that even if the court won't reduce or cancel arrears of support, a payor can still seek a reduction of spousal support under s. 20 of the Family Relations Act or under s. 17 of the Divorce Act; see the discussion about varying spousal support obligations in the previous chapter. This isn't a perfect solution, since some or all of the arrears will still be owing, but at least your ongoing payments will be more affordable. Back to the top of this chapter. III. Collecting Arrears of Spousal Support The collection of debts and the enforcement of judgments occupies a whole course at law school; these are not easy tasks. The provincial government has, however, established an agency responsible for enforcing support obligations, the Family Maintenance Enforcement Program (FMEP). Recipients of support can enrol in this program, which is partly financed by charges levied against payors in default, and the program will tend to the enforcement of court orders and separation agreements which provice for the payment of support without a great deal of further involvement on the part of the recipient. For the recipient, FMEP offers its services for free. All you have to do is file your order or separation agreement with the program and fill out an application form. FMEP will take over from there. FMEP is authorized by the Family Maintenance Enforcement Act to take whatever legal steps are required to collect the arrears and otherwise enforce an on-going support obligation. FMEP can commence and conduct any action that can be taken by a private creditor, as well as some unique actions that the program alone is authorized to do. Among other things, FMEP can:
It is recommended that you enroll with FMEP if you are having problems with the spousal support payments you are owed. FMEP will keep an on-going record of payments made, monies owing, and interest accumulating on the monies owing, and their services are free. 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 additional expense as well. Furthermore, any private collections efforts you make may very well interfere with or frustrate the efforts being made by FMEP. Recipients who have enrolled in FMEP must obtain the permission of the director of FMEP before they take any independent steps to collect from the recipient. See the chapter Other Family Law Issues > Enforcing Orders & Agreements for more information. The website of the federal Department of Justice has an overview of support enforcement mechanisms in Canada which might also be helpful. A. Agreements Sections 121 and 122 of the Family Relations Act allow a person to file a family law agreement dealing with spousal support, usually a separation agreement, in the Provincial (Family) Court and the Supreme Court. It is not necessary for a court 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, and its spousal support provisions can be enforced by FMEP accordingly. You must file your separation agreement in court before FMEP can enforce it. B. Orders The failure to pay spousal support owing because of a court order is a breach of that order and, possibly, contempt of court. Contempt of court is punishable by a fine, a jail sentence, or both a fine and a jail sentence. Collecting arrears is collecting on the debt owed as a result of the failure to pay. The fact that the person failed to pay is a separate issue that can be dealt with as contempt. FMEP can handle collecting the debt, but if you want to pursue the payor for contempt, you must apply to court yourself for a finding that the payor is in contempt of court. FMEP won't do it for you. The court will not find that someone is in contempt of court unless the breach of the support order is serious, ongoing and intentional. While the court can order that any fines levied against the payor can be paid to the recipient, a finding of contempt will not cause the arrears to be paid. Payment of that debt is best handled by FMEP. C. Orders Made Outside British Columbia The court deals with orders for spousal support that are made outside of the province differently, depending on whether the order was made elsewhere in Canada under the federal Divorce Act, elsewhere in Canada under provincial legislation, or outside of Canada under the laws of a different country. 1. The Divorce Act 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 spousal 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 as if it were an order of the courts of British Columbia. You should only file an order made elsewhere in Canada in British Columbia if you or the payor live in British Columbia. 2. Orders Made in Reciprocating Jurisdictions The provincial Interjurisdictional Support Orders Act allows orders for spousal support made under the provincial laws of another province and by the courts of certain countries (including South Africa, Zimbabwe, Austria, the Czech Republic, German, Norway, the Slovak Republic, the UK, the USA and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, New Zealand, Fiji, Papua New Guinea and Barbados and its dependencies) to be filed in our courts and enforced as if they were orders made by a court in British Columbia, once the orders are registered in this province. These jurisdictions are called "reciprocating jurisdictions" because they have agreed to treat and enforce British Columbia orders in the same way that we treat and enforce their orders. Foreign and extraprovincial orders which registered in British Columbia under the Interjurisdictional Support Orders Act may be enforced by FMEP as if they were orders made by the courts of British Columbia. More information about enforcing orders can be found in the Other Family Law Issues > Enforcing Orders & Agreements chapter. 3. Orders Made in Non-Reciprocating Jurisdictions Under the Family Maintenance Enforcement Act, FMEP may enforce orders that are made by a court in British Columbia, that are deemed to have been made by a court in British Columbia, or that are otherwise enforceable in British Columbia. The catch, however, is that foreign orders must be registered in the courts of this province before FMEP can enforce them. If your spousal support order was made in a country which is not a reciprocating country under the Interjurisdictional Support Orders Act, your order cannot be automatically enforced by FMEP or by the courts of British Columbia. Assuming that the payor lives here — and if that isn't the case, there's probably no point in enforcing your order in this province — you have two choices:
If you apply for spousal support, the court will pay close attention to your original spousal support order because of respect our courts have for the orders of other courts in different jurisdictions. Although our courts will apply British Columbia laws to your application, they will only make an order which rejects the other court's order outright if that order was obtained in circumstances contrary to our ideas of justice, such as if: the order was made without the knowledge of the recipient; there was no requirement for due process in the court which made the order; or the order was made on arbitrary or faith-based principles. Back to the top of this chapter. Site Navigation
Go back to the start of this chapter. Section Menu
The Legal System · Alternatives to Court · Children · Child Support · Family Assets
Resources Menu Site Map & Index · Legislation · Resources & Links · Definitions · Feedback
Please ensure you take the time to read these important legal notices.
| |
