Difference between revisions of "Child Support Arrears"
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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 compelling circumstances. | 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 compelling circumstances. | ||
A person who owes arrears of child support | 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 | 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 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 | 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. | ||
===Orders for support=== | ===Orders for support=== | ||
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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 | #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, | ||
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<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> | ||
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 | 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=== | ===The Family Maintenance Enforcement Program=== | ||
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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. If you are a payor who wishes to apply to court to reduce or cancel child support arrears, and the FMEP is involved in your case, you must serve FMEP as well as the recipient with your application. | 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. If you are a payor who wishes to apply to court to reduce or cancel child support arrears, and the FMEP is involved in your case, you must serve FMEP as well as the recipient with your application. | ||
==The reduction and cancellation of arrears== | ==The reduction and cancellation of arrears== | ||
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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 | 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 could reduce or cancel arrears was "gross unfairness," as set out in s. 96(2). The courts will probably 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. | 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 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): | 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, and you must be prepared to address the criteria set out in s. 174(2): | ||
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*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 that the court should take into <span class="noglossary">account</span>? | *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 that the court should take into <span class="noglossary">account</span>? | ||
Be prepared to | Be prepared to provide to the court 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. | ||
The leading case that set out the legal principles with respect to cancellation of arrears in British Columbia is | The leading case that set out the legal principles with respect to cancellation of arrears in British Columbia is Earle v. Earle, 1999 CanLii 6914 (BCSC). | ||
==Collecting arrears of support== | ==Collecting arrears of support== | ||
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#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 | #prohibiting a payor from renewing his or her driver's licence, | ||
#directing the federal government to refuse to issue a new passport or suspend current passport, | #directing the federal government to refuse to issue a new passport or suspend current passport, | ||
#registering a lien against personal property and real property owned by the payor, and | #registering a lien against personal property and real property owned by the payor, and | ||