Child Support Arrears: Difference between revisions

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{{JP Boyd on Family Law TOC}}
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As with all decisions relating to children, there is no such thing as an absolutely final order or agreement for child support. It is always open to the court to change an order or agreement for child support, providing that the parties' circumstances, or the circumstances of the parties' children, have changed. Generally speaking, payors will want to apply to have support reduced or terminated when their income has decreased or the children have grown up, while recipients will want to apply to have support increased when the payor's income has gone up or if the children's special expenses have increased.
{{OKSUBSTANTIVE}}


This chapter will deal with changing orders made under the federal Divorce Act and the provincial Family Relations Act, changing orders that were made before the federal Child Support Guidelines came into effect on 1 May 1997, and changing orders that were made in a different jurisdiction. This chapter will also discuss claims for retroactive support (a change in support that is to take effect on some date before the claim is made), including the important case of D.B.S. v. S.R.G.
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.


I. Divorce Act Orders
This page provides an introduction to the problem of arrears, and a discussion of the reduction and cancellation of arrears of child support is followed by a discussion of the collection of arrears.


Under s. 5 of the Divorce Act, the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily resident in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the Divorce Act gives the court the authority to change, cancel or suspend orders for support made under that act. "Changing" an order is called "varying" the order.
==Introduction==


Section 17 of the Divorce Act says this:
If child 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's contempt of court as well. The courts and society as a whole place a high value on the financial support of children, and both take an extremely dim view of anyone who defaults on such an obligation in the absence of a very good excuse or some very sympathetic circumstances.


(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
A person who owes arrears of child 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.
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied
(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.
(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.
This all boils down to these principles:


a court can make an order changing a previous child support order if a change in circumstances has occured since the order was made;
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.
any new order for child support must be made according to the Child Support Guidelines;
the court may make an order for support different from the Guidelines if a previous order or agreement has made special provisions for the care of the child which would make an order under the Guidelines inappropriate; and,
the court may also make an order for support different from the Guidelines if both spouses agree to the order and reasonable arrangements have been made for the support of the children.
Before the Child Support Guidelines came into effect, an applicant had to show that there had been a serious and unforeseen change in circumstances before the court would hear an application to vary an order for child support. Now, an applicant must only show that there has been a change in income or the child's expenses to show that there has been a change in circumstances.


Section 14 of the Guidelines defines a "change in circumstances" as follows:
===Orders for Support===


For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
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:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...
A. Financial Statements
When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.


The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables.
#require the payor to provide security for his or her compliance with the court order;
Both parties must produce Financial Statements dealing with income if custody is shared or split.
#pay any expenses incurred by the recipient as a result of the payor's actions;
Both parties must produce complete Financial Statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children over the age of majority.
#pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions;
These new Financial Statements give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order.
#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.


B. Statutory Provisions
Unfortunately for people who would rather be jailed than pay, s. 231(3)(c) says that:
These are the primary sections of the Divorce Act dealing with varying child support orders.


s. 2: definitions
<blockquote><tt>imprisonment of a person under this section does not discharge any duties of the person owing under an order</tt></blockquote>
s. 4: jurisdiction to make child support orders
s. 5: jurisdiction to change orders
s. 15.1: child support
s. 15.3: child support has priority over spousal support
s. 17: variation proceedings
Back to the top of this chapter.


II. Family Relations Act Orders
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.


Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:
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.


(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.
===Agreements for Support===
(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must
(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and
(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.
(1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that
(a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and
(b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers.
This all boils down to the following:


any change in a child support order must take into account the means and needs of the parties;
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.
a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and,
the court may make an order for support different from the Guidelines if a previous order or agreement has made special provisions for the care of the child which would make an order under the Guidelines unfair.
A. Financial Statements
When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.


The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables.
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:
Both parties must produce Financial Statements dealing with income if custody is shared or split.
Both parties must produce complete Financial Statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children over the age of majority.
These new Financial Statements give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order.


B. Statutory Provisions
<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>
These are the primary sections of the Family Relations Act dealing with varying a child support order:


s. 1: definitions
As a result, the Supreme Court and the Provincial Court can:
s. 9: interim orders
s. 20: changing or cancelling orders
s. 88: each parent has the obligation to support their children
s. 91: who may apply for a child support order
s. 96: variation proceedings
Back to the top of this chapter.


III. Orders Made Before 1 May 1997
#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.


The fact that an order or agreement was made or entered into before the Child Support Guidelines came into effect does not mean that a court must change the order or agreement to comply with the Guidelines. Although s. 17(6.1) of the Divorce Act requires the court to make an order which complies with the Guidelines, this rule does not apply to agreements and orders made before 1 May 1997. Don't be discouraged by this, however, as the court still retains the discretion to apply the Guidelines and generally will.
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.


If the difference between the old order and the order you seek is substantial, which it often will be, and the application is for an increased amount of child support, the court will likely be more willing to apply the Guidelines, as a higher amount of support is presumed to be in the best interests of children.
===The Family Maintenance Enforcement Program===


Back to the top of this chapter.
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.


IV. Orders Made Outside British Columbia
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.


It rarely easy to change an order made outside of British Columbia because of the respect our courts must give to the authority and jurisdiction of the court that made the original order. (There a bunch of other reasons why it can be hard to change an order made outside of British Columbia, but that's the meat of it.) The process that will apply depends entirely on whether the original order was made under the federal Divorce Act or under the family law legislation of the jurisdiction whose court made the original order.
==The Reduction and Cancellation of Arrears==


A. Divorce Act Orders
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.
Orders that were made elsewhere in Canada under the federal Divorce Act can be changed here under s. 5 of the act, as long as both parties live in British Columbia. Where one party still lives in the province whose courts made the original order, a party living in BC can apply to change the original order using a process described in ss. 18, 19 and 20 of the act:


the applicant applies here for a "provisional" order changing the original order;
===Arrears under the ''Divorce Act''===
the court sends the provisional order to the jursidiction that made the original order; and,
on notice to the other party, the original court holds a hearing to "confirm" the provisional order.
This process requires two hearings: one here in British Columbia for a provisional order, and a second in the original court to confirm that order. The court in the other province may or may not confirm the provisional order, and may chose to send the order back to BC for more information. Until the provisional order is confirmed, the provisional order has no effect and the original order will continue to be the operative order.


B. Other Orders
Section 17 of the ''Divorce Act'' says this about varying orders for child support:
Orders that were made elsewhere in Canada under provincial family law legislation, or were made in certain countries other than Canada, can be changed by someone living in British Columbia using the provincial Interjurisdictional Support Orders Act. Governments that have agreed to follow this process under the Interjurisdictional Support Orders Act are called "reciprocating jurisdictions."


The countries that will cooperate with a proceeding under the Interjurisdictional Support Orders Act are: South Africa, Zimbabe, 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.
<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>(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>(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.</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 process under this act is as follows:
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 applicant completes a bunch of forms provided by the provincial Reciprocals Office;
===Arrears under the ''Family Law Act''===
our Reciprocals Office sends the forms to the court that made the original order; and,
on notice of the other party, the original court holds a hearing on the applicant's application and may make an order varying the original order.
Under this process, there is only one hearing which is held by the court that made the original order. The court in the reciprocating jurisdiction may or may not make the order that the applicant wants, and may send the application back to British Columbia for more information. The original order will continue in effect until the court in the reciprocating jurisdiction varies it.


This new process is intended to simplify things by having just the one hearing. To do that, however, the process relies very heavily on paperwork and the officials of our government and the government of the reciprocating jurisdiction. As a result, applications under the Interjurisdictional Support Orders Act can take a long time to process.
Unlike the ''Divorce Act'', the ''Family Law Act'' deals with the question of arrears directly. Section 174(1) of the act says this:


The British Columbia Reciprocals Office, along with all of the forms required by the Interjurisdictional Support Orders Act can be found at www.isoforms.bc.ca.
<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>(2) For the purposes of this section, the court may consider</tt></blockquote>
<blockquote><blockquote><tt>(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) any circumstances that the court considers relevant.</tt></blockquote></blockquote>
<blockquote><tt>(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.</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>


To vary an order of a country that does not participate in Interjurisdictional Support Orders Act applications, you will have to apply to vary the order in that country.
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''.


Back to the top of this chapter.
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).


V. Retroactive Child Support
*What efforts have you made to pay the child support you were required to pay?
*Why did you wait until arrears had accumulated before you tried to vary the child support order?
*Why can you not pay your arrears now?
*Are there any other circumstances, such as catastrophic business losses or the unintended loss of your employment, changes in the children's residence, or new financial obligations in relation to your family which the court should take into account?


Someone making a claim for "retroactive child support" is seeking an order that is to take effect from some date in the past, before the date the claim is made or heard. Typically, someone receiving child support will ask for an increase in the amount of support payable dating back to when the payor's income went up. If the claim is successful, the payor will be obliged to start making payments in the amount of the new order, plus a lump sum representing the difference between the support that was paid and the support that ought to have been paid. This can sometimes be a significant financial hardship, particularly where the period of retroactive effect is long.
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.


The trend in the recent case law on this subject has been to impose an on-going duty on payors to disclose their income, whether they are asked for this information or not, and the courts have been increasingly willing to subject payors to retroactive orders for child support.
==Collecting Arrears of Support==


A. The Basic Law: L.S. v. E.P.
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 case of L.S. v. E.P., a 1999 decision of our Court of Appeal, used to be the most important case on this issue in British Columbia, and still is the most important case for orders made under just the Family Relations Act. In this case, the court set out the factors should considered in deciding whether there should or should not be a retroactive order for support:


"A review of the case law reveals that there are a number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include:
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.
(1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parent;
(2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order;
(3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses;
(4) an excuse for a delay in bringing the application where the delay is significant; and,
(5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end.
"Factors which have militated against ordering retroactive maintenance include:
(1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such a burden would interfere with ongoing support obligations;
(2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and,
(3) a significant, unexplained delay in bringing the application."
When hearing an application for retroactive child support, the court would apply these factors in deciding whether a retroactive award was warranted and, if so, how much the award should be for and when the retroactive effect of the order should begin.


B. A Change in the Law for Divorce Act Orders: D.B.S. v. S.R.G.
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:
In July 2006, the Supreme Court of Canada released its judgment in four related cases, D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry and Hiemstra v. Hiemstra, and significantly clarified the law on retroactive child support, and where it changed the law the changes weren't all that far from our Court of Appeal's decision in L.S. v. E.P. These cases are referred to collectively as just "D.B.S. v. S.R.G."


The logic underlying the court's decision is this. Before the Child Support Guidelines came into effect, child support was determined using budgets and a means and needs analysis looking at the "means" of the parents and the real "needs" of the children. After the Guidelines came into effect on 1 May 1997, child support was expressly linked to the income of the payor, and the payor's duty was to pay support at the amount required for his or her income, using the tables attached to the Guidelines rather than budgets and the needs and means analysis. As a result, the court held that a duty to pay child support — whether under a separation agreement or a court order — is never final and absolute. No orders or agreements are final on the subject of support, and both parents have the obligation of ensuring that the right amount of child support is being paid on an ongoing basis.
#garnishing the payor's wages;
#collecting from a corporation wholly owned by the payor;
#redirecting federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient;
#prohibiting a payor from renewing his or her driver's licence;
#directing the RCMP to seize a payor's passport;
#registering a lien against personal property and real property owned by the payor; and,
#obtaining an order for the payor's arrest.


The following is a summary of the important points in this decision.
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.


The Rationale for Retroactive Support
More information about enforcing orders can be found in the page ___________ and at the website of the Department of Justice, which includes a helpful overview of support enforcement mechanisms in Canada.


Both parents have a duty "to ensure that their children are receiving a proper amount of support."
===Separation Agreements===
"While the paying parent does not shoulder the burden of automatically adjusting payments" when his or her income increases, "this does not mean that (s)he will satisfy his/her child support obligation by doing nothing."
If the payor's income increases and child support does not, "there will remain an unfulfilled obligation" that could warrant a retroactive award of support.
When Retroactive Child Support Should be Ordered: when there is an existing order


Child support orders "must be considered presumptively valid."
Section 148(3) of the ''Family Law Act allow'' 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.
"Where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents' obligations."
An obligation to pay the proper amount of support is "independent of any court order that may have been previously awarded."
Where parents fail to adjust the amount of support payable, "a court may order an award that recognizes and corrects this failure."
When Retroactive Child Support Should be Ordered: when there is an existing agreement


"A payor parent who adheres to a separation agreement that has not been endorsed by a court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does a parent acting pursuant to a court order."
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.
"Agreements reached by the parents should be given considerable weight."
"Where circumstances have changed," such that the "actual support obligations of the payor have not been met, courts may order a retroactive award."
When Retroactive Child Support Should be Ordered: when there is no order


There is "no restriction" as to "the date from which the court may order that the award take effect."
More information about enforcing agreements can be found in the chapter _____________ .
"Courts will have the power to order original retroactive child support awards in appropriate circumstances."
Factors in Making Retroactive Child Support Awards


The child must be eligible to receive support when the application for retroactive support is made; "child support is for children of the marriage, not for adults who used to have that status."
===Orders Made Outside British Columbia===
The court has the discretion to award or not award retroactive support, but retroactive awards "need not be seen as exceptional."
Retroactive child support should not be awarded if the child would not actually benefit from the award of if the award would cause hardship to the payor.
"A court should strive for a holistic view of the matter and decide each case on the basis of its particular" facts.
The recipient's delay in seeking an increase in support will not favour a retroactive award where the recipient "knew higher support payments were warranted, but decided arbitrarily not to apply."
The recipient's delay will not be considered if the the recipient feared the payor's reaction or lacked "the financial or emotional means to bring an application, or was given inadequate legal advice."
"Courts should not hesitate to take into account a payor's blameworthy conduct," and courts should "take an expansive view of what constitutes blameworthy conduct."
Blameworthy conduct is "anything that privileges the payor parent's interests over his/her children's right to an appropriate amount of support," such as hiding income increases or intimidating a recipient from seeking an increase in support.
How Far Back Child Support Awards should be Retroactive


The date of "effective notice" of the recipient's intention to seek an increase should be the furthest back a retroactive award should go.
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 child 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.
"Effective notice" doesn't mean the date of applying to court, but the date of notice of "any intention by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated" was given.
Except where there is some blameworthy conduct on the part of the payor, it will "usually be inappropriate" to go further back in time than three years from the date of the hearing.
Where there is blameworthy conduct, "the presumptive date of retroactivity" will be the time the payor's "circumstances changed materially."
How Much Retroactive Child Support should be Ordered


Retroactive awards must ensure that the amount "fits the circumstances."
The provincial ''Interjurisdictional Support Orders Act'' allows orders for child 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.
"Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended."
"It will be easier to show that a retroactive award causes undue hardship" than it is to show than a normal child support order causes undue hardship.
A court "should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case."
In other words, retroactive support may be awarded whenever a payor is paying less than the Child Support Guidelines requires, if his or financial circumstances change following the making of an order or agrement dealing with child support. In making such an order, the court must consider:
 
any excuse for the recipient’s delay in seeking an increase in support;
any blameworthy conduct on the party of the payor;
the circumstances of the child; and,
any hardship that a retroactive award would cause to the payor.
If a retroactive award is made, the award should be made retroactive to the date notice is given of the recipient's intention to seek an increase in the amount of support, but to a limit of three years. Where the payor’s conduct is blameworthy, then the support should be retroactive to the date of the change in the payor’s financial circumstances, and may be retroactive beyond the three year mark.


Foreign orders which are filed in this province may be enforced by FMEP as if they were orders made by the courts of British Columbia. See the chapter ___________ more information.


==Further Reading in this Chapter==
==Further Reading in this Chapter==
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* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
FLA, DA, COEA, FMEA, ISOA


===Links===
===Links===
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* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* list of related public resources
* list of related public resources
DoJ website on collecting support, FMEP, Themis/Maximus




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JP Boyd on Family Law
JP Boyd on Family Law
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Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
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Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
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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.

This page provides an introduction to the problem of arrears, and a discussion of the reduction and cancellation of arrears of child support is followed by a discussion of the collection of arrears.

Introduction

If child 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's contempt of court as well. The courts and society as a whole place a high value on the financial support of children, and both take an extremely dim view of anyone who defaults on such an obligation in the absence of a very good excuse or some very sympathetic circumstances.

A person who owes arrears of child support, a payor, will likely be interested in the ways that the outstanding amount can be reduced, while a person to whom support is owing, a recipient, will be interested in collecting on the arrears. A person who owes arrears will generally have a difficult time convincing the court to forgive all or some of his or her debt. On the other hand, collecting arrears can be difficult as well, if for no other reason than the fact that you can't get blood from a stone. Unless the payor has another source of funds to draw upon, a recipient may discover that the outstanding support will never be recovered.

Despite these barriers and obstacles, it is possible for a payor to have 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 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:

  1. require the payor to provide security for his or her compliance with the court order;
  2. pay any expenses incurred by the recipient as a result of the payor's actions;
  3. pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions;
  4. pay up to $5,000 as a fine; or,
  5. 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:

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 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.

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.

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:

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.

As a result, the Supreme Court and the Provincial Court can:

  1. require the payor to provide security for his or her compliance with the agreement;
  2. pay any expenses incurred by the recipient as a result of the payor's actions;
  3. pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions;
  4. pay up to $5,000 as a fine; or,
  5. 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.

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.

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 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.

Arrears under the Divorce Act

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

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(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) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

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

Unlike the Divorce Act, the Family Law Act deals with the question of arrears directly. Section 174(1) of the act 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.

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).

  • What efforts have you made to pay the child support you were required to pay?
  • Why did you wait until arrears had accumulated before you tried to vary the child support order?
  • Why can you not pay your arrears now?
  • Are there any other circumstances, such as catastrophic business losses or the unintended loss of your employment, changes in the children's residence, or new financial obligations in relation to your family which the court should take into account?

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 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.

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:

  1. garnishing the payor's wages;
  2. collecting from a corporation wholly owned by the payor;
  3. redirecting federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient;
  4. prohibiting a payor from renewing his or her driver's licence;
  5. directing the RCMP to seize a payor's passport;
  6. registering a lien against personal property and real property owned by the payor; and,
  7. 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.

More information about enforcing orders can be found in the page ___________ and at the website of the Department of Justice, which includes a helpful overview of support enforcement mechanisms in Canada.

Separation Agreements

Section 148(3) of the Family Law Act allow 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.

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.

More information about enforcing agreements can be found in the chapter _____________ .

Orders Made Outside British Columbia

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 child 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.

The provincial Interjurisdictional Support Orders Act allows orders for child 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.

Foreign orders which are filed in this province may be enforced by FMEP as if they were orders made by the courts of British Columbia. See the chapter ___________ more information.

Further Reading in this Chapter

  • bulleted list of other pages in this chapter, linked

Page Resources and Links

Legislation

  • bulleted list of linked legislation referred to in page

FLA, DA, COEA, FMEA, ISOA

Links

  • bulleted list of linked external websites referred to in page
  • list of related public resources

DoJ website on collecting support, FMEP, Themis/Maximus


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