Difference between revisions of "Child Support Arrears"
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{{JP Boyd on Family Law TOC|expanded = childsupport}} | {{JP Boyd on Family Law TOC|expanded = childsupport}} | ||
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When a person who is obliged to pay child 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. | When a person who is obliged to pay child 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. | ||
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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 access to some very powerful and effective enforcement tools to collect outstanding arrears of support. | 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 access to some very powerful and effective enforcement tools to collect outstanding arrears of support. | ||
===Orders for | ===Orders for support=== | ||
Orders for the payment of child 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 child support are enforceable like any other order of the court. Someone who breaches a Supreme Court order can be punished for contempt of court. As well, under the ''[[Family Law Act]]'', the Supreme Court and the Provincial Court can: | ||
#require the payor to provide security for his or her compliance with the court order | #require the payor to provide security for his or her compliance with the court order, | ||
#pay any expenses incurred by the recipient as a result of the payor's actions | #pay any expenses incurred by the recipient as a result of the payor's actions, | ||
#pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions | #pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions, | ||
#pay up to $5,000 as a fine | #pay up to $5,000 as a fine, or, | ||
#if nothing else will ensure the payor's compliance with the order, jail the payor for up to 30 days. | #if nothing else will ensure the payor's compliance with the order, jail the payor for up to 30 days. | ||
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<blockquote><tt>imprisonment of a person under this section does not discharge any duties of the person owing under an order</tt></blockquote> | <blockquote><tt>imprisonment of a person under this section does not discharge any duties of the person owing under an order</tt></blockquote> | ||
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 monthly payment of support is no longer required, often when the child reaches the age of majority. | 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 monthly payment of support is no longer required, often when the child reaches the age of majority. | ||
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. | 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. | ||
===Agreements for | ===Agreements for support=== | ||
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. | 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 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 148(2) of the ''Family Law Act'' says: | 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 148(2) of the ''[[Family Law Act]]'' says: | ||
<blockquote><tt>A written agreement respecting child 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 child 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> | ||
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As a result, the Supreme Court and the Provincial Court can: | As a result, the Supreme Court and the Provincial Court can: | ||
#require the payor to provide security for his or her compliance with the agreement | #require the payor to provide security for his or her compliance with the agreement, | ||
#pay any expenses incurred by the recipient as a result of the payor's actions | #pay any expenses incurred by the recipient as a result of the payor's actions, | ||
#pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions | #pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions, | ||
#pay up to $5,000 as a fine | #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. | #if nothing else will ensure the payor's compliance with the agreement, jail the payor for up to 30 days. | ||
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===The Family Maintenance Enforcement Program=== | ===The Family Maintenance Enforcement Program=== | ||
Although recipients can enforce orders and agreements for child support on their own, most of the time recipients will give that job to the Family Maintenance Enforcement Program, a provincial government program under the provincial ''Family Maintenance Enforcement Act'' which has been contracted out to an American company, Maximus (Themis), not that you'd know this from the government website. FMEP is free service for recipients that is largely funded by late fees and penalties charged to delinquent payors. | Although recipients can enforce orders and agreements for child 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 (FMEP)], 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 (Themis), not that you'd know this from the government website. FMEP is 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, although it will make important, judge-like decisions about who is and isn't entitled to receive child support. FMEP cannot increase or decrease the amount of a child support obligation and it cannot reduce or cancel arrears of child support. | FMEP has no discretion to change the orders and agreements that are filed with it for enforcement, although it will make important, judge-like decisions about who is and isn't entitled to receive child support. FMEP cannot increase or decrease the amount of a child support obligation and it cannot reduce or cancel arrears of child support. | ||
==The | ==The reduction and cancellation of arrears== | ||
Payors may apply to court to have their arrears cancelled or reduced; technically, this is in some ways an application to vary the order or agreement for child support under which the arrears accumulated rather than an independent order about the arrears. | Payors may apply to court to have their arrears cancelled or reduced; technically, this is in some ways an application to vary the order or agreement for child support under which the arrears accumulated rather than an independent order about the arrears. | ||
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<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote> | <blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote> | ||
The ''Divorce Act'' does not deal expressly with arrears; applications under the act to reduce arrears are simply variation applications. The test the court will apply is similar to the test it applies for orders made under the ''Family Law Act''. | The ''[[Divorce Act]]'' does not deal expressly with arrears; applications under the act to reduce arrears are simply variation applications. The test the court will apply is similar to the test it applies for orders made under the ''[[Family Law Act]]''. | ||
===Arrears under the ''Family Law Act''=== | ===Arrears under the ''Family Law Act''=== | ||
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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''. | 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]]''. | ||
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 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). | 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 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). | ||
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Be prepared to provide to the court a Financial Statement summarizing all of your assets and income, liabilities and expenses, if you intend to show the court that you cannot pay your arrears. Complete financial disclosure is absolutely essential. | Be prepared to provide to the court a Financial Statement summarizing all of your assets and income, liabilities and expenses, if you intend to show the court that you cannot pay your arrears. Complete financial disclosure is absolutely essential. | ||
==Collecting | ==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 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. | ||
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FMEP is free for recipients. All you have to do is file your order or filed separation agreement with the program and fill out an application form. FMEP will take the matter from there, and the program is authorized by the ''Family Maintenance Enforcement Act'' to take whatever legal steps are required to enforce an ongoing support obligation, and track and collect on any outstanding arrears, plus interest accumulating on those arrears. | FMEP is free for recipients. All you have to do is file your order or filed separation agreement with the program and fill out an application form. FMEP will take the matter from there, and the program is authorized by the ''Family Maintenance Enforcement Act'' to take whatever legal steps are required to enforce an ongoing support obligation, and track and collect on any outstanding arrears, plus interest accumulating on those arrears. | ||
Under the ''Family Maintenance Enforcement Act'', FMEP has the authority to commence and conduct any court proceedings that can be undertaken by a private creditor, as well as some unique actions that the program alone can take. Among FMEP's collection powers are: | Under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'', FMEP has the authority to commence and conduct any court proceedings that can be undertaken by a private creditor, as well as some unique actions that the program alone can take. Among FMEP's collection powers are: | ||
#garnishing the payor's wages | #garnishing the payor's wages, | ||
#collecting from a corporation wholly owned by the payor | #collecting from a corporation wholly owned by the payor, | ||
#redirecting federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient | #redirecting federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient, | ||
#prohibiting a payor from renewing his or her driver's licence | #prohibiting a payor from renewing his or her driver's licence, | ||
#directing the RCMP to seize a payor's passport | #directing the RCMP to seize a payor's passport, | ||
#registering a lien against personal property and real property owned by the payor | #registering a lien against personal property and real property owned by the payor, and | ||
#obtaining an order for the payor's arrest. | #obtaining an order for the payor's arrest. | ||
While it is possible to undertake collection or enforcement proceedings on your own, this will cost money and time and possibly require you to hire a lawyer and bear that expense as well. Since any private collection efforts you might take may interfere with efforts being made on your behalf by FMEP, recipients enrolled with FMEP are required to obtain the permission of the program's director before they can take independent enforcement actions. | While it is possible to undertake collection or enforcement proceedings on your own, this will cost money and time and possibly require you to hire a lawyer and bear that expense as well. Since any private collection efforts you might take may interfere with efforts being made on your behalf by FMEP, recipients enrolled with FMEP are required to obtain the permission of the program's director before they can take independent enforcement actions. | ||
More information about enforcing orders can be found in the page | More information about enforcing orders can be found in the page [[Enforcing Orders in Family Matters]] and at the website of the Department of Justice, which includes a helpful overview of support enforcement mechanisms in Canada. | ||
===Separation Agreements=== | ===Separation Agreements=== | ||
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* <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | * <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | ||
==Page | ==Page resources and links== | ||
===Legislation=== | ===Legislation=== | ||
* | * ''[[Family Law Act]]'' | ||
* ''[[Divorce Act]]'' | |||
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]]'' | |||
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' | |||
* [http://canlii.ca/t/8mcr Supreme Court Family Rules] | |||
* [http://canlii.ca/t/85pb Provincial Court (Family) Rules] | |||
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'' | |||
* [http://canlii.ca/t/80mh Federal Child Support Guidelines] | |||
===Links=== | ===Links=== | ||
* | * [http://www.isoforms.bc.ca The British Columbia Reciprocals Office] | ||
* | * [http://www.familylaw.lss.bc.ca/guides/change/cantAgree/index.php Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)] | ||
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order] | |||
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program Website] | |||
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details] | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||