Difference between revisions of "Child Support Arrears"
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*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. | ||
Unfortunately for people who would rather be jailed than pay, | Unfortunately for people who would rather be jailed than pay, section 231(3)(c) says that: | ||
<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 ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' and the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''. By | 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]'' and the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''. By section 3(1)(l) of the Act, there is no limitation period for enforcement of child support arrears. | ||
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. | ||
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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 | 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. | ||
===The Family Maintenance Enforcement Program=== | ===The Family Maintenance Enforcement Program=== | ||
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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 could reduce or cancel arrears was "gross unfairness," as set out in | 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 section 96(2). The courts will probably take the same approach to section 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 | 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 section 174(2): | ||
*What efforts have you made to pay the child support you were required to pay? | *What efforts have you made to pay the child support you were required to pay? | ||