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Difference between revisions of "Spousal Support Arrears"
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If spousal support is owed under a court order or an agreement, a failure to pay the support owing is a breach of that order or agreement, and, in the case of orders, it can be contempt of court as well. The court places a high value on the financial support of spouses and will usually take an extremely dim view of anyone who defaults on such an obligation in the absence of a very good excuse or some very compelling circumstances. | If spousal support is owed under a court order or an agreement, a failure to pay the support owing is a breach of that order or agreement, and, in the case of orders, it can be contempt of court as well. The court places a high value on the financial support of spouses and will usually take an extremely dim view of anyone who defaults on such an obligation in the absence of a very good excuse or some very compelling circumstances. | ||
A person who owes arrears of spousal support, a ''payor'', will likely be interested in the ways that the outstanding amount can be reduced, while a person to whom support is owing, a ''recipient'', will be interested in collecting on the arrears. A person who owes arrears will generally have a difficult time convincing the court to forgive all or some of | A person who owes arrears of spousal support, a ''payor'', will likely be interested in the ways that the outstanding amount can be reduced, while a person to whom support is owing, a ''recipient'', will be interested in collecting on the arrears. A person who owes 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 discover that the outstanding support will never be recovered. | ||
Despite these barriers and obstacles, it is possible for a payor to have | Despite these barriers and obstacles, it is possible for a payor to have his or her arrears reduced and, sometimes, cancelled altogether. At the same time, recipients have <span class="noglossary">access</span> to some very powerful and effective enforcement tools to collect outstanding arrears of support. | ||
===Orders for support=== | ===Orders for support=== | ||
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Orders for the payment of spousal support are enforceable like any other order of the court. Someone who breaches a Supreme Court order can be punished for contempt of court. As well, under the ''[[Family Law Act]]'', the Supreme Court and the Provincial Court can: | Orders for the payment of spousal support are enforceable like any other order of the court. Someone who breaches a Supreme Court order can be punished for contempt of court. As well, under the ''[[Family Law Act]]'', the Supreme Court and the Provincial Court can: | ||
#require the payor to provide security for | #require the payor to provide security for his or her compliance with the court order, | ||
#pay any expenses incurred by the recipient as a result of the payor's actions, | #pay any expenses incurred by the recipient as a result of the payor's actions, | ||
#pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions, | #pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions, | ||
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As a result, the Supreme Court and the Provincial Court can: | As a result, the Supreme Court and the Provincial Court can: | ||
#require the payor to provide security for | #require the payor to provide security for his or her compliance with the agreement, | ||
#pay any expenses incurred by the recipient as a result of the payor's actions, | #pay any expenses incurred by the recipient as a result of the payor's actions, | ||
#pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions, | #pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions, | ||
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===The Family Maintenance Enforcement Program=== | ===The Family Maintenance Enforcement Program=== | ||
Although recipients can enforce orders and agreements for spousal support on their own, most of the time recipients will give that job to the [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program], a | Although recipients can enforce orders and agreements for spousal support on their own, most of the time recipients will give that job to the [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program], a provincial government program under the provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' which has been contracted out to an American company, Maximus ― not that you'd know this from the government website. | ||
FMEP is a free service for recipients that is largely funded by late fees and penalties charged to delinquent payors. | FMEP is a free service for recipients that is largely funded by late fees and penalties charged to delinquent payors. | ||
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Payors may apply to court to have their arrears cancelled or reduced. Technically, there are two ways to do that and each has its own considerations. | Payors may apply to court to have their arrears cancelled or reduced. Technically, there are two ways to do that and each has its own considerations. | ||
The two approaches are these. The first is to say, in effect, “Yes, that is the proper amount of arrears. I owe that, but I can’t pay it. Please allow me some relief.” It is essentially a ''debtor’s relief approach'' and as you might expect, the law takes a fairly hard view | The two approaches are these. The first is to say, in effect, “Yes, that is the proper amount of arrears. I owe that, but I can’t pay it. Please allow me some relief.” It is essentially a ''debtor’s relief approach'' and as you might expect, the law takes a fairly hard view. | ||
This is the approach the former ''Family Relations Act'' took. In order to succeed, the payor had to show that failure to grant relief would be “grossly unfair” to the payor. | This is the approach the former ''Family Relations Act'' took. In order to succeed, the payor had to show that failure to grant relief would be “grossly unfair” to the payor. | ||
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The second approach is to say, in effect, “Yes, this is the amount I owe under the original order or agreement, but my situation changed. If I had applied when the change happened, the amount would have been reduced. So, please let me apply now and recalculate the arrears accordingly.” | The second approach is to say, in effect, “Yes, this is the amount I owe under the original order or agreement, but my situation changed. If I had applied when the change happened, the amount would have been reduced. So, please let me apply now and recalculate the arrears accordingly.” | ||
This is the ''retroactive variation'' approach (applying late, or after the fact). The court still requires the payor to explain why | This is the ''retroactive variation'' approach (applying late, or after the fact). The court still requires the payor to explain why he or she deserves a second chance, but is a little easier to persuade the court to do this than to allow the payor to pay something less than the full amount. | ||
Now, the ''Family Law Act'' allows both for a reduction or cancellation of arrears (s 174) and for a retroactive variation of support order (s 167). So, the cases that said there is only one approach under the former act no longer apply. Payors have a choice. This is important because it is a little easier to succeed on a retroactive variation than a pure cancellation or reduction of arrears. Just be sure you are clear with the court which route you are taking. | Now, the ''Family Law Act'' allows both for a reduction or cancellation of arrears (s 174) and for a retroactive variation of support order (s 167). So, the cases that said there is only one approach under the former act no longer apply. Payors have a choice. This is important because it is a little easier to succeed on a retroactive variation than a pure cancellation or reduction of arrears. Just be sure you are clear with the court which route you are taking. | ||
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Among other things, the court must consider: | Among other things, the court must consider: | ||
#the circumstances surrounding the delay in bringing the application; and | |||
#any hardship caused by making or not making the order, to either party. | |||
Delay might be explained if the other party promised not to rely on the full amount, or if the payor was temporary incapacitated, or was unable to get appropriate information or advice. But the delay will have to be explained somehow. The courts will not be sympathetic to someone who just chose to let it slide. | Delay might be explained if the other party promised not to rely on the full amount, or if the payor was temporary incapacitated, or was unable to get appropriate information or advice. But the delay will have to be explained somehow. The courts will not be sympathetic to someone who just chose to let it slide. | ||
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Hardship is a two-way street. The court has to consider the position of both the payor and the recipient. If the recipient relied on the order or agreement and went into debt in the expectation that the arrears would eventually be paid, that weighs against granting relief. If, on the other hand, it was clear to both parties that the order or agreement was unreasonable in light of current circumstances, that weighs in favour of granting relief. A retroactive reduction will be very unlikely if it would require the recipient to pay back money already received and spent. | Hardship is a two-way street. The court has to consider the position of both the payor and the recipient. If the recipient relied on the order or agreement and went into debt in the expectation that the arrears would eventually be paid, that weighs against granting relief. If, on the other hand, it was clear to both parties that the order or agreement was unreasonable in light of current circumstances, that weighs in favour of granting relief. A retroactive reduction will be very unlikely if it would require the recipient to pay back money already received and spent. | ||
There was some doubt whether a retroactive reduction was allowed under the ''Family Law Act'', but several cases have held that it does, including ''[http://canlii.ca/t/glb4d N.M. v G.M.]'', 2015 BCSC 1732. | There was some doubt whether a retroactive reduction was allowed under the new ''Family Law Act'', but several cases have held that it does, including ''[http://canlii.ca/t/glb4d N.M. v G.M.]'', 2015 BCSC 1732. | ||
Remember, though, that a retroactive variation application can only adjust the arrears to what they should have been, had the order or agreement been adjusted for current circumstances in a timely manner. If arrears would still have accrued, it does not allow any relief beyond that. | Remember, though, that a retroactive variation application can only adjust the arrears to what they should have been, had the order or agreement been adjusted for current circumstances in a timely manner. If arrears would still have accrued, it does not allow any relief beyond that. | ||
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==Collecting arrears of support== | ==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 | 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 free for recipients. All you have to do is file your order or filed separation 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 ongoing support obligation, and track and collect on any outstanding arrears, plus interest accumulating on those arrears. | FMEP is free for recipients. All you have to do is file your order or filed separation 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 ongoing support obligation, and track and collect on any outstanding arrears, plus interest accumulating on those arrears. | ||
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Under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'', FMEP has the authority to commence and conduct any court proceedings that can be undertaken by a private creditor, as well as some unique actions that the program alone can take. Among FMEP's collection powers are: | Under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'', FMEP has the authority to commence and conduct any court proceedings that can be undertaken by a private creditor, as well as some unique actions that the program alone can take. Among FMEP's collection powers are: | ||
#garnishing the payor's wages, | |||
#collecting from a corporation wholly owned by the payor, | |||
#redirecting federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient, | |||
#prohibiting a payor from renewing his or her driver's licence, | |||
#directing the RCMP to seize a payor's passport, | |||
#registering a lien against personal property and real property owned by the payor, and | |||
#obtaining an order for the payor's arrest. | |||
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 collection efforts you might take may interfere with efforts being made on your behalf by FMEP, recipients enrolled with FMEP are required to obtain the permission of the program's director before they can take independent enforcement actions. | 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 collection efforts you might take may interfere with efforts being made on your behalf by FMEP, recipients enrolled with FMEP are required to obtain the permission of the program's director before they can take independent enforcement actions. | ||
