7,367
edits
Difference between revisions of "Child Support Arrears"
From Clicklaw Wikibooks
From staging 2024
Nate Russell (talk | contribs) (From staging Aug 2022) |
Nate Russell (talk | contribs) (From staging 2024) |
||
| Line 50: | Line 50: | ||
===The Family Maintenance Enforcement Program=== | ===The Family Maintenance Enforcement Program=== | ||
Although recipients can enforce agreements and orders for child support on their own, most of the time recipients will give that job to the [ | Although recipients can enforce agreements and orders for child support on their own, most of the time recipients will give that job to the [https://www.bcfma.ca/ BC Family Maintenance Agency], which has taken over the Family Maintenance Enforcement Program. BCFMA is the new name for FMEP, however the older name is still in common use. This is a provincial government program under the provincial ''[https://canlii.ca/t/840m Family Maintenance Enforcement Act]'' that tracks payments that are owing and those that are paid, calculates the interest owing on payments that are not made, and can impose fines when payments aren't made. | ||
BCFMA is a free service for recipients. Its purpose is to enforce the payment of child support and children's special expenses and extraordinary expenses, although the enforcement of special expenses and extraordinary expenses through BCFMA isn't exactly straightforward. You should contact BCFMA to ask what they can or cannot do about enforcing agreements and orders about the payment of children's special expenses and extraordinary expenses. | |||
It's important to know that | It's important to know that BCFMA can't change agreements and orders about child support. While it can make important, judge-like decisions about who is and isn't entitled to receive child support when children are 19 years old or older, BCFMA can't increase or decrease the amount of a child support obligation and it can't reduce or cancel arrears of child support. | ||
It's also important to know that payors who want to apply to court to reduce or cancel arrears of child support accumulating under an agreement or order that's been filed with | It's also important to know that payors who want to apply to court to reduce or cancel arrears of child support accumulating under an agreement or order that's been filed with BCFMA must serve BCFMA, as well as the recipient, with their application. BCFMA does not help recipients respond to applications to change support orders, set aside agreements, or reduce or cancel arrears. You'll have to do that on your own. But from the recipient's perspective, just having BCFMA take over enforcement of the order or agreement can be a huge relief. | ||
==Reducing and cancelling arrears== | ==Reducing and cancelling arrears== | ||
| Line 90: | Line 90: | ||
A similar section of the old ''Family Relations Act'', the law before the ''Family Law Act'', was described as a "complete code" regarding the reduction or cancellation of arrears under that act, meaning that the only ground on which a court could reduce or cancel arrears was "gross unfairness," as set out in section 96(2) of the old act. The courts have taken the same approach to section 174 of the ''Family Law Act''. | A similar section of the old ''Family Relations Act'', the law before the ''Family Law Act'', was described as a "complete code" regarding the reduction or cancellation of arrears under that act, meaning that the only ground on which a court could reduce or cancel arrears was "gross unfairness," as set out in section 96(2) of the old act. The courts have taken the same approach to section 174 of the ''Family Law Act''. | ||
The courts have interpreted "gross unfairness" under the ''Family Law Act'' 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 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. The leading case that describes the legal principles about cancelling arrears is a 1999 case called [https://canlii.ca/t/1d20m Earle v. Earle], in which the court said this: | The courts have interpreted "gross unfairness" under the ''Family Law Act'' 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 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. The leading case that describes the legal principles about cancelling arrears is a 1999 case called ''[https://canlii.ca/t/1d20m Earle v. Earle]'', 1999 CanLII 6914 (BC SC), in which the court said this: | ||
<blockquote><tt>"There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so."</tt></blockquote> | <blockquote><tt>"There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so."</tt></blockquote> | ||
| Line 109: | Line 109: | ||
}}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 who is entitled to receive child support or spousal support under an agreement or order can sign up with this program and the program will tend to the enforcement of the agreement or order without a great deal of further involvement on the part of the recipient. | }}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 who is entitled to receive child support or spousal support under an agreement or order can sign up with this program and the program will tend to the enforcement of the agreement or order without a great deal of further involvement on the part of the recipient. | ||
BCFMA is free for recipients. All you have to do is file your agreement or order with the program and fill out an application form. (Agreements about child support must be filed in court first.) BCFMA will take the matter from there, and the program is authorized by the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' to take whatever legal steps may be required to enforce an ongoing support obligation, and track and collect on any unpaid support and the interest accumulating on any unpaid support. | |||
The ''Family Maintenance Enforcement Act'' gives | The ''Family Maintenance Enforcement Act'' gives BCFMA a lot power to collect child support. The program can start and manage all of the court proceedings that can be undertaken by a private creditor, as well as some unique actions that the program alone can take. BCFMA can also: | ||
*garnish the payor's wages, | *garnish the payor's wages, | ||
| Line 121: | Line 121: | ||
*get an order for the payor's arrest. | *get an order for the payor's arrest. | ||
While it is possible to make collection or enforcement efforts 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 collection efforts you might take may interfere with efforts being made by | While it is possible to make collection or enforcement efforts 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 collection efforts you might take may interfere with efforts being made by BCFMA , recipients enrolled with BCFMA are required to get the permission of the program's director before they take independent enforcement steps. | ||
You can find more information about enforcing orders in the chapter [[Resolving Problems in Court]], in the section [[Enforcing Orders in Family Matters]]. You can also find more information at the website of the [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice], which includes a helpful overview of support enforcement mechanisms in Canada. | You can find more information about enforcing orders in the chapter [[Resolving Problems in Court]], in the section [[Enforcing Orders in Family Matters]]. You can also find more information at the website of the [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice], which includes a helpful overview of support enforcement mechanisms in Canada. | ||
| Line 129: | Line 129: | ||
Section 148(3) of the ''[[Family Law Act]]'' allows a party to an agreement, usually a separation agreement, to file the agreement in the Provincial Court or in the Supreme Court. An agreement that is filed in court can be enforced as if it were an order of the court. It is not necessary for a court proceeding to have been started before an agreement can be filed in court, nor is it necessary that the agreement be a British Columbia agreement. | Section 148(3) of the ''[[Family Law Act]]'' allows a party to an agreement, usually a separation agreement, to file the agreement in the Provincial Court or in the Supreme Court. An agreement that is filed in court can be enforced as if it were an order of the court. It is not necessary for a court proceeding to have been started before an agreement can be filed in court, nor is it necessary that the agreement be a British Columbia agreement. | ||
BCFMA will enforce agreements for support, however they require that the agreement be filed in court first, and sent to them, with the court's stamp, before they can enforce the agreement. | |||
You can find more information about enforcing agreements in the chapter [[Family Law Agreements]], in particular within the section [[Enforcing Family Law Agreements]]. | You can find more information about enforcing agreements in the chapter [[Family Law Agreements]], in particular within the section [[Enforcing Family Law Agreements]]. | ||
| Line 175: | Line 175: | ||
===Links=== | ===Links=== | ||
* [ | * [https://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office) | ||
* [https://clicklaw.bc.ca/resource/4645 Legal Aid BC's Family Law website's information page "Court orders"] | * [https://clicklaw.bc.ca/resource/4645 Legal Aid BC's Family Law website's information page "Court orders"] | ||
**See "Change an order or set aside an agreement made in BC" | **See "Change an order or set aside an agreement made in BC" | ||
* [ | * [https://www.bcfma.ca/ BC Family Maintenance Agency website] (formerly FMEP) | ||
* [ | * [https://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details] | ||
* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice's website "About support enforcement"] | * [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice's website "About support enforcement"] | ||
{{REVIEWED | reviewer = [[Beatrice McCutcheon]], 24 August 2022}} | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
