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Difference between revisions of "Spousal Support Arrears"
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→Cancellation or reduction of (proper) arrears
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There was some doubt whether a retroactive reduction was allowed under the ''Family Law Act'', but several cases have held that it is, 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 ''Family Law Act'', but several cases have held that it is, including ''[http://canlii.ca/t/glb4d N.M. v G.M.]'', 2015 BCSC 1732. | ||
Remember, though, that a retroactive variation application can only | Remember, though, that a retroactive variation application can only result in arrears being adjusted to what they should have been if the order or agreement had been adjusted for the relevant factors in a timely manner. If arrears would still have accrued, it does not allow any relief beyond that. | ||
===Cancellation or reduction of (proper) arrears=== | ===Cancellation or reduction of (proper) arrears=== | ||
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<blockquote><tt>(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the ''Family Maintenance Enforcement Act'', on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest.</tt></blockquote> | <blockquote><tt>(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the ''Family Maintenance Enforcement Act'', on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest.</tt></blockquote> | ||
In general, under the ''[[Family Law Act]]'', arrears will only be cancelled if a payor can show they are unable to pay the arrears "now and in the future": ''[http://canlii.ca/t/gmc40 MacCarthy v. MacCarthy]'', 2015 BCCA 496. | |||
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, | 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. You must be able to show evidence that supports the conclusion that not only can you not pay the arrears at present, but also in the future. You must also be prepared to address the criteria set out in section 174(2). | ||
*What efforts have you made to pay the spousal support you were required to pay? | *What efforts have you made to pay the spousal support you were required to pay? | ||
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*Are there any other circumstances, such as catastrophic business losses or the unintended loss of your employment, or new financial obligations in relation to your family that the court should take into <span class="noglossary">account</span>? | *Are there any other circumstances, such as catastrophic business losses or the unintended loss of your employment, or new financial obligations in relation to your family that the court should take into <span class="noglossary">account</span>? | ||
Be prepared to provide to the court a Financial Statement (Form F8 in the Supreme Court and Form 4 in the Provincial Court) 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 absolutely essential. | Be prepared to provide to the court a Financial Statement (Form F8 in the Supreme Court and Form 4 in the Provincial Court) 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 absolutely essential. | ||
==Collecting arrears of support== | ==Collecting arrears of support== | ||