Difference between revisions of "Spousal Support Arrears"
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*to pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions, | *to pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions, | ||
*to pay up to $5,000 as a fine, or | *to pay up to $5,000 as a fine, or | ||
*to | *to go to jail, if nothing else will ensure the payor's compliance with the order, for up to 30 days. | ||
Unfortunately for people who would rather be jailed than pay, section 231(3)(c) says that: | Unfortunately for people who would rather be jailed than pay, section 231(3)(c) says that: | ||
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<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: | As a result, the Supreme Court and the Provincial Court can require the payor: | ||
*to provide security for their compliance with the court order, | |||
*to pay any expenses incurred by the recipient as a result of the payor's actions, | |||
*to pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions, | |||
*to pay up to $5,000 as a fine, or | |||
*to go to jail, if nothing else will ensure the payor's compliance with the order, for up to 30 days. | |||
Payors can apply under | 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 and vary the agreement, prospectively or retroactively, under sections 164 and 167 of the ''Family Law Act'', or seek an order in terms different from the agreement under section 15.2 of the ''Divorce Act''. | ||
===The Family Maintenance Enforcement Program=== | ===The Family Maintenance Enforcement Program=== | ||
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This is the ''retroactive variation'' approach (applying late, or after the fact). The court still requires the payor to explain why they deserve a second chance, but it is a little easier to persuade the court to do this than to allow the payor to pay something less than the full amount. | This is the ''retroactive variation'' approach (applying late, or after the fact). The court still requires the payor to explain why they deserve a second chance, but it is a little easier to persuade the court to do this than to allow the payor to pay something less than the full amount. | ||
Now, the ''Family Law Act'' allows both for a reduction or cancellation of arrears ( | Now, the ''Family Law Act'' allows both for a reduction or cancellation of arrears (section 174) and for a retroactive variation of a support order (section 167). So, the cases that said there is only one approach under the former act no longer apply. Payors have a choice. This is important because it is a little easier to succeed on a retroactive variation than a pure cancellation or reduction of arrears. Just be sure you are clear with the court which route you are taking. | ||
===Retroactive reduction of support=== | ===Retroactive reduction of support=== | ||
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<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; 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><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>[...]</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>(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>[...]</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>[...]</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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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 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 | 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 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? | ||