Spousal Support Arrears

When a person who is obliged to pay spousal support fails to pay all of the spousal support they are required to pay, a debt begins to accumulate. The debt owing is called the payor's arrears of spousal support.

People generally have two different goals when arrears begin to mount up. The person responsible for paying support, the payor, likely wants the court to reduce or cancel the arrears, while the person receiving the support, while the recipient, will want the court to force the payor to pay what's owing.

This section provides an introduction to the problem of spousal support arrears. It discusses the reduction and cancellation of arrears of spousal support and the collection of arrears.

Introduction

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, the payor, will likely be interested in the ways that the outstanding amount can be reduced, while a person to whom support is owing, the recipient, will be interested in collecting the arrears. Someone who owes arrears will generally have a difficult time convincing the court to reduce their debt. On the other hand, collecting arrears can be difficult as well, if for no other reason than 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 may never be recovered.

Despite these challenges, it is possible for a payor to have their 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.

Orders for spousal support

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, both the Supreme Court and the Provincial Court can require the payor to:

• provide security for their compliance with the court order, in other words, pay an amount of money into the court which the court will hold to guarantee the payment of child support,
• pay any expenses incurred by the recipient as a result of the payor's failure to pay child support,
• pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's failure to pay child support, or
• pay up to $5,000 as a fine.

If nothing else works to ensure that the payor complies with the child support order, the court can also jail the payor for up to 30 days.

Unfortunately for people who would rather be jailed than pay, section 231(3)(c) of the Family Law Act says that:

imprisonment of a person under this section does not discharge any duties of the person owing under an order.

Since orders for support require the payment of money, arrears can also be enforced as a "judgment debt" under the provincial Court Order Enforcement Act for up to 10 years after the obligation to pay support has ended.

Payors can apply for an order reducing arrears of spousal support that have accumulated under a court order under both the Divorce Act and the Family Law Act. Applications like these must be made under the same legislation under which the original spousal support order was made.

Agreements for spousal support

Arrears that have accumulated under a separation agreement are owed because of the promises each party made to the other when they signed the agreement. A separation agreement is a contract that can be enforced in court, just like any other contract.

Agreements for support are most easily enforced by filing them in court. Once they are filed in court, agreements can be enforced just like they are court orders. (Although agreements can still be enforced under the law of contracts, it's a lot simpler to file them in court and take care of it that way.) Section 163(3) of the Family Law Act says:

A written agreement respecting spousal support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

Payors can apply under section 174 of the Family Law Act for an order reducing arrears that have accumulated under an agreement that has been filed in court just like they can for arrears accumulating under an order. Alternatively, they can apply to set aside or change the agreement, going back in time or going forward, under sections 164 and 167 of the Family Law Act, or ask for a spousal support order on terms different than their agreement under section 15.2 of the Divorce Act.

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 BC Family Maintenance Agency, which is the name for what many still know as the Family Maintenance Enforcement Program. BCFMA is the new name for FMEP. This is a provincial government program under the provincial 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 spousal support.

It's important to know that BCFMA can't change agreements and orders about spousal support. BCFMA can't increase or decrease the amount of a spousal support obligation and it can't reduce or cancel arrears of spousal support. 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

Payors may apply to court to have their arrears of spousal support cancelled or reduced. When arrears are cancelled, the debt is wiped out and the payor no longer owes money to the payor for their past spousal support obligation. When arrears are reduced, there's still a debt owing to the recipient but the amount of the debt has been reduced to a smaller amount.

There are two ways to apply to court for orders reducing or cancelling arrears, and each has its own advantages and disadvantages. The first approach is to say, “Yes, that is the proper amount of arrears. I owe that, but I can’t pay it. Please give me a break on paying the debt I oew.” As you might expect, the courts usually take a fairly dim view of this approach, and the payor will have to show that payment of the amount of support owing will cause them significant hardship.

The second approach is to say, “Yes, this is the amount I owe under the original order or agreement, but my situation changed. If I had applied to change the order or agreement when my financial circumstances changed, the amount would have been reduced. Please let me apply now and recalculate how much I owe in light of my new financial circumstances.” This application asks the court to change the order or agreement going back in time, called a retroactive variation of the original order or agreement. The court will still require the payor to explain why they deserve a second chance, but it may be a little easier to persuade the court to do this than to just cancel or reduce the arrears owing.

Section 174 of the Family Law Act allows people to ask for a reduction or cancellation of arrears, and section 167 allows people to apply for the retroactive variation of support orders. Payors have a choice. This is important, because it's may be a little easier to succeed on a retroactive variation than on an application to cancel or reduce of arrears. Just be sure you are clear with the court which route you are taking.

Retroactively varying spousal support obligations

Section 17 of the Divorce Act says this about varying orders for 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; ...

(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. ...

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. ...

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

Section 167 of the Family Law Act explicitly mentions the court's power to retroactively vary a support order. It says this:

(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.

(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that

(a) the order is necessary to relieve economic hardship that

(i) arises from a change described in subsection (2) (a), and

(ii) is related to the relationship between the spouses, and

(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order.

In 2006, the Supreme Court of Canada established rules for applying for retroactive child support, or for a retroactive increase in child support, in the case of D.B.S. v S.R.G. discussed in the chapter on Child Support, under the section Making Changes to Child Support. In 2014 the case of G.M.W. v D.P.W., our Court of Appeal said these principles also apply to applications for a retroactive reduction of child support. Both involve child support, but the rules are similar for spousal support, as the New Brunswick Court of Appeal said in its 2010 decision in P.M B. v. M.L.B.:

"I acknowledge D.B.S. v. S.R.G. speaks only of retroactive variation orders involving child support. Nothing is said about the analytical framework to be applied in regard to spousal support. For purposes of deciding this appeal, and as a general proposition, I can see no valid policy reason for distinguishing between child and spousal support when it comes to the retroactive variation of support arrears. ... Once the notion of fault is removed from the legal equation, be it the fault of the payer or payee, there is no need to distinguish between retroactive variation orders involving a decrease in child as opposed to spousal support."

When hearing applications to retroactively reduce a spousal support obligation, the court must consider:

• the circumstances surrounding the delay in bringing the application to change the original order, and
• any hardship caused by making or not making the order, to either party.

The payor's delay might be explained if the recipient promised not to rely on the full amount or enforce the full amount payable, if the payor couldn't pursue the application because of illness or disability, or if the payor couldn't get appropriate information or advice. But the delay has to be explained somehow. The courts will not be sympathetic to payor who knew they were getting into debt but just chose to let it slide.

Hardship, on the other hand, 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 fact suggests that the original order or agreement should not be reduced. If, on the other hand, it was clear to both spouses that the order or agreement was unreasonable in light of their circumstances, that fact suggests that the original order or agreement should be reduced. A retroactive reduction will not usually be ordered if the reduction would require the recipient to pay back money already received and spent.

It is important to know that successful retroactive variation applications will only result in arrears being reduced to what they should have been if the order or agreement had been adjusted in a more timely manner. If arrears would have accumulated even on the new amount of spousal support, those arrears are still owing.

Reducing and cancelling arrears without variation

The Divorce Act doesn't talk specifically about the reduction and cancellation of arrears. Instead, section 17 of the act says this:

(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;

Applications to reduce or cancel arrears of spousal support under the Divorce Act aren't often pursued, but do happen. Haisman v. Haisman, a 1994 decision of the Alberta Court of Appeal, and Earle v. Earle, a 1999 decision of our Supreme Court, are good examples of how the court deals with these applications.

The Family Law Act does talk about arrears. Section 174 says this:

(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may consider

(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,

(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and

(c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(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.

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", which is what the Court of Appeal said in the 2015 case of MacCarthy v. MacCarthy.

If you are asking the court to make an order reducing or cancelling 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 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 Earle v. Earle, in which the court said this:

"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."

You must also be prepared to address the factors set out in section 174(2).

• What efforts have you made to pay the spousal support you were required to pay?
• Why didn't you try to change the spousal support before arrears had accumulated?
• Why can't you pay the arrears now?
• Are there any other circumstances, such as catastrophic business losses or an unintended loss of employment, or new financial obligations in relation to a new family, that the court should take into account?

Be prepared to provide a court form called a financial statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court, that summarizes all of your assets and debts, and income 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

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 BC Family Maintenance Agency, or BCFMA (formerly the Family Maintenance Enforcement Program, or FMEP). 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 spousal support must be filed in court first.) BCFMA will take the matter from there, and the program is authorized by the 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 BCFMA a lot power to collect spousal 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,
• collect from a corporation wholly owned by the payor,
• redirect federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient,
• prohibit a payor from renewing their driver's licence,
• direct the federal government to refuse to issue a new passport to the payor or to suspend the payor's current passport,
• register a lien against personal property and real property owned by the payor, and
• 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 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 at the website of the Department of Justice, which includes a helpful overview of support enforcement mechanisms in Canada.

Separation agreements

Section 163(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 an original copy of the agreement be filed in court and sent to them, with the court's stamp, before they can enforce the agreement.

Orders made outside British Columbia

It's a little harder to enforce orders for spousal support that are made elsewhere against payors living in British Columbia because the recipient needs the help of the British Columbia courts to collect against a British Columbia resident. However, both the federal Divorce Act and the provincial Interjurisdictional Support Orders Act have special processes that can help.

Canadian spousal support orders

Section 20(2) of the Divorce Act says that an order under the act has legal effect throughout Canada. Section 20(3) also says that such orders may be filed in the courts of any province and be enforced as if they were an order of the courts of that province. In other words, if your divorce order was made in Prince Edward Island and contains a term requiring that spousal support be paid, you can file that order in the Supreme Court of British Columbia and it will have the same effect and be enforceable here, just as if it were an order of the Supreme Court of British Columbia.

Spousal support orders that are made under the legislation of another province can be filed for enforcement in British Columbia under sections 17 and 18 of the Interjurisdictional Support Orders Act. In this process, the recipient provides a copy of the order to the reciprocals office in their province, which then sends the order to the Interjurisdictional Support Services (IJSS) office. The IJSS office, which is BC's reciprocals office, then files the order in court, and, once filed the order has the same effect as an order of the courts of British Columbia.

Orders made outside of Canada

A number of other countries have agreements with British Columbia about the enforcement of spousal support orders. Recipients living in those countries can follow the Interjurisdictional Support Orders Act process to have their orders filed and enforced here. The countries with agreements with British Columbia are:

• United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands
• Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea
• Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland
• Caribbean — Barbados and its Dependencies
• Africa — South Africa, Zimbabwe
• Asia — Hong Kong, Republic of Singapore

See the Interjurisdictional Support Orders Regulation for the current list.

The same sort of process is also available under section 19.1 of the Divorce Act, and the same countries that have agreements with British Columbia for the Interjurisdictional Support Orders Act also have agreements with Canada about the enforcement of spousal support orders.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Family Maintenance Enforcement Act
• Court Order Enforcement Act
• Interjurisdictional Support Orders Act

Links

• BC Family Maintenance Agency website (formerly FMEP)
• Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 30 June 2022.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.