Spousal Support Arrears: Difference between revisions

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{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = spousalsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[David Dundee]]
|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]]
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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.
| resourcetype = featured resources from<br/> BC Ministry of Justice on<br/>
| link = [http://www.clicklaw.bc.ca/global/search?k=Family+Maintenance+Enforcement&f=Family+law FMEP]
}}When a person who is obliged to pay spousal support fails to meet some or all of that obligation, a debt begins to accumulate and the amount owing is called the payor's ''arrears'' of support.  


People generally have two different goals when arrears begin to mount up: the person responsible for paying support likely wants the court to reduce or cancel the arrears, while the person receiving the support will want the court to force the payor to pay what's owing.
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 arrears. It discusses the reduction and cancellation of arrears of spousal support and the collection of arrears.
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==
==Introduction==
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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 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.
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 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.
Despite these challenges, it is possible for a payor to have their 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 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]]'', 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]]'', both the Supreme Court and the Provincial Court can require the payor to:


#require the payor to provide security for his or her compliance with the court order,
*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 actions,
*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 actions,
*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, or
*pay up to $5,000 as a fine.
#if nothing else will ensure the payor's compliance with the order, jail the payor for up to 30 days.


Unfortunately for people who would rather be jailed than pay, s. 231(3)(c) says that:
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.


<blockquote><tt>imprisonment of a person under this section does not discharge any duties of the person owing under an order</tt></blockquote>
Unfortunately for people who would rather be jailed than pay, section 231(3)(c) of the ''Family Law Act'' says that:


Since orders for support require the payment of money, arrears can also be enforced as a judgment debt under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' for up to 10 years after the obligation to pay support has ended.
<blockquote><tt>imprisonment of a person under this section does not discharge any duties of the person owing under an order.</tt></blockquote>


Payors can apply for an order reducing arrears that have accumulated under a court order under both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. Such applications must be made using the act under which the support order was made.
Since orders for support require the payment of money, arrears can also be enforced as a "judgment debt" under the provincial ''[https://canlii.ca/t/84h5 Court Order Enforcement Act]'' for up to 10 years after the obligation to pay support has ended.


===Agreements for support===
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.


Arrears that have accumulated under a separation agreement are owed as a result of a contractual obligation to provide support. A separation agreement is a contract that can be enforced in the courts just like any other contract.
===Agreements for spousal support===


Agreements for support are most easily enforced by filing them in court, after which they can be enforced as if they were court orders. Although agreements can still be enforced under the law of contracts, it's a lot simpler to file them in court. Section 163(3) of the ''[[Family Law Act]]'' says:
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:


<blockquote><tt>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.</tt></blockquote>
<blockquote><tt>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.</tt></blockquote>


As a result, the Supreme Court and the Provincial Court can:
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]]''.
 
#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 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 as a fine, or
#if nothing else will ensure the payor's compliance with the agreement, jail the payor for up to 30 days.
 
Payors can apply under s. 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 and vary the agreement, prospectively or retroactively, under ss. 164 and 167 of the ''Family Law Act'', or seek an order in terms different from the agreement under s. 15.2 of the ''Divorce Act''.


===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 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.
Although recipients can enforce orders and agreements for spousal support on their own, most of the time recipients will give that job to the [https://www.bcfma.ca 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 ''[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.  
 
FMEP is a free service for recipients that is largely funded by late fees and penalties charged to delinquent payors.


FMEP has no discretion to change the orders and agreements that are filed with it for enforcement. FMEP cannot increase or decrease the amount of a spousal support obligation and it cannot reduce or cancel arrears of spousal support. FMEP will not help you defend an application to vary the support order, set aside the agreement, or reduce or cancel arrears.  You will have to do that on your own.  But just taking over enforcement of the order or agreement itself can be a huge relief.
BCFMA is a free service for recipients. Its purpose is to enforce the payment of spousal support.  


==Reduction or cancellation of arrears==
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.


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 ''Divorce Act'' and the former ''Family Relations Act'' each allowed only one.  Now, the ''Family Law Act'' allows both.  This is important because it is a little easier to succeed under the one than the other, if you have a choice.
==Reducing and cancelling arrears==


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.
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.
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.


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.
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.


This is the ''retroactive variation'' approach (applying late, or after the fact) and is the approach allowed under the ''Divorce Act''. 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.
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.


The ''Divorce Act'' does not have a provision like the ''Family Relations Act'' or ''Family Law Act''.  It does not allow the court to grant relief if the money is truly owing.  All it allows the court to do is correct the amount, by allowing the payor to vary the order or agreement after the fact.
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.


The flip side is that the ''Family Relations Act'' did not expressly allow the payor to vary an order retroactively.  Because of that omission, the courts concluded that the section allowing the courts to reduce or cancel arrears was the “complete code” on this issue and, therefore, even if there were two approaches possible they had to be treated the same way.  The payor still had to meet the “grossly unfair” test.
===Retroactively varying spousal support obligations===


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 (though it may be awhile before everyone recognizes this.  Many judges and lawyers are still too familiar with the old law.) 
Section 17 of the ''[[Divorce Act]]'' says this about varying orders for support:
 
 
===Retroactive reduction of support===
 
Section 17 of the ''[[Divorce Act]]'' says this about varying orders for spousal support:


<blockquote><tt>(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,</tt></blockquote>
<blockquote><tt>(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,</tt></blockquote>
<blockquote><blockquote><tt>(a) a support order or any provision thereof on application by either or both former spouses; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(a) a support order or any provision thereof on application by either or both former spouses; ...</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.</tt></blockquote></blockquote>
<blockquote><tt>(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. ...</Tt></blockquote>
<blockquote><tt>(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.</Tt></blockquote>
<blockquote><tt>(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. ...</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
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<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote>


Section 167 of the ''[[Family Law Act]]'' says this:
Section 167 of the ''[[Family Law Act]]'' explicitly mentions the court's power to retroactively vary a support order. It says this:
 
<blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote>
<blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote>
<blockquote><tt>(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:</tt></blockquote>
<blockquote><tt>(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:</tt></blockquote>
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<blockquote><blockquote><blockquote><tt>(i)  arises from a change described in subsection (2) (a), and </tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i)  arises from a change described in subsection (2) (a), and </tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii)  is related to the relationship between the spouses, and </tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii)  is related to the relationship between the spouses, and </tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order.</tt></blockquote></blockquote>


Retroactive variation applications are relatively new.  In 2006, the Supreme Court of Canada established rules for applying for retroactive child support, or for a retroactive increase in child support.  This is the case of ''D.B.S. v S.R.G.'' discussed in the chapter, [[Making Changes to Child Support]]. In the recent case of ''G.M.W. v D.P.W.'' 2014 BCCA 282, our Court of Appeal said these principles also apply to applications for a retroactive reduction of support. Both involve child support, but the rules will be similar for spousal support.  Among other things, the court must consider:
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 [https://canlii.ca/t/g80ht 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 [https://canlii.ca/t/27qrq P.M B. v. M.L.B.]:
#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.
<blockquote><tt>"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."</tt></blockquote>


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


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.
*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.


===Cancellation or reduction of (proper) arrears===
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.


The ''Divorce Act'' does not have any provision for this. Section 174(1) of the ''Family Law Act'' says this:
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:
 
<blockquote><tt>(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,</tt></blockquote>
<blockquote><blockquote><tt>(a) a support order or any provision thereof on application by either or both former spouses;</tt></blockquote></blockquote>
 
Applications to reduce or cancel arrears of spousal support under the ''Divorce Act'' aren't often pursued, but do happen. [https://canlii.ca/t/1p6l3 Haisman v. Haisman], a 1994 decision of the Alberta Court of Appeal, and [https://canlii.ca/t/1d20m 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:


<blockquote><tt>(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.</tt></blockquote>
<blockquote><tt>(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.</tt></blockquote>
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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>


A similar section of the old ''Family Relations 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 can reduce or cancel arrears was "gross unfairness," as set out in s. 96(2). I expect the courts will take the same approach to s. 174 of the ''[[Family Law Act]]''.
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 [https://canlii.ca/t/gmc40 MacCarthy v. MacCarthy].  


The courts have interpreted "gross unfairness" under the ''Family Relations 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 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 [https://canlii.ca/t/1d20m Earle v. Earle], in which the court said this:


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, and you must be prepared to address the criteria set out in s. 174(2).
<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>
 
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?
*What efforts have you made to pay the spousal support you were required to pay?
*Why did you wait until arrears had accumulated before you tried to vary the spousal support order?
*Why didn't you try to change the spousal support before arrears had accumulated?
*Why can you not pay your arrears now?
*Why can't you pay the arrears now?
*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 an unintended loss of employment, or new financial obligations in relation to a new 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 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==
==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. 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.
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.


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.
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 ''[https://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.


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:
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:


#garnishing the payor's wages,
*garnish the payor's wages,
#collecting from a corporation wholly owned by the payor,
*collect 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,
*redirect 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,
*prohibit a payor from renewing their driver's licence,
#directing the RCMP to seize a payor's passport,
*direct the federal government to refuse to issue a new passport to the payor or to suspend the payor's current passport,
#registering a lien against personal property and real property owned by the payor, and
*register a lien against personal property and real property owned by the payor, and
#obtaining an order for the payor's arrest.
*get 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 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 Family Law Problems in Court]] within the section [[Enforcing Orders in Family Matters]]. You can also find more information at the website of the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice], which includes a helpful overview of support enforcement mechanisms in Canada.
You can find more information at the website of the [https://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.


===Separation agreements===
===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.
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===


FMEP 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.
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.  


You can find more information about enforcing agreements in the chapter  [[Family Law Agreements]] within the section [[Enforcing Family Law Agreements]].
====Canadian spousal support orders====


===Orders made outside British Columbia===
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 ''[https://canlii.ca/t/84l3 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 [https://www.isoforms.bc.ca 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====


Section 20 of the ''[[Divorce Act]]'' says that an order made in a divorce action has legal effect throughout Canada. It also provides that such an order may be filed in the courts of any province and be enforced as if it were an order of the courts 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 here as if it were an order of the courts of British Columbia.
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:


The provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'' allows orders for spousal support made under provincial laws elsewhere in Canada, and in certain foreign states, to be filed in our courts and enforced as if they were British Columbia orders. The reciprocating states under the ''Interjurisdictional Support Orders Act'' are South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies.
* 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


Foreign orders that are filed in this province may be enforced by FMEP as if they were orders made by the courts of British Columbia. You can find more information in the chapter  [[Resolving Family Law Problems in Court]], and in particular in the section [[Enforcing Orders in Family Matters]].
See the [https://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list.
<!---HIDDEN
==Further Reading in this Chapter==


* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
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.
END HIDDEN --->


==Resources and links==
==Resources and links==
Line 191: Line 196:
* ''[[Family Law Act]]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[https://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5  Court Order Enforcement Act]''
* ''[https://canlii.ca/t/84h5  Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[https://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''


===Links===
===Links===


* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program Website]
* [https://www.bcfma.ca BC Family Maintenance Agency website] (formerly FMEP)
* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [https://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://clicklaw.bc.ca/global/search?k=spousal%20support%20ministry Clicklaw: Spousal support help from BC Ministry of Justice]




{{REVIEWED | reviewer = [[David Dundee]], March 26, 2015}}
{{REVIEWED | reviewer = [[JP Boyd]], 30 June 2022}}


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}

Latest revision as of 17:50, 27 August 2024

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

Links


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.