Spousal Support Arrears: Difference between revisions
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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. | 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. | ||
==The reduction | ==Reduction or cancellation of arrears== | ||
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. | |||
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. | |||
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.” | |||
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 ''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. | |||
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. | |||
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.) | |||
===Arrears under the ''Divorce Act''=== | ===Arrears under the ''Divorce Act''=== | ||