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Difference between revisions of "Spousal Support Arrears"
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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. | 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 | ===Orders for support=== | ||
Orders for the payment of spousal 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 spousal 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 his or her compliance with the court order | #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, | ||
#pay up to $5,000 as a fine | #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. | #if nothing else will ensure the payor's compliance with the order, jail the payor for up to 30 days. | ||
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<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 ''Court Order Enforcement Act'' for up to 10 years after the obligation to pay support has ended. | 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]'' for up to 10 years after the obligation to pay support has ended. | ||
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. | ||
===Agreements for | ===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. | 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 163(3) of the ''Family Law Act'' says: | 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 163(3) of the ''[[Family Law Act]]'' says: | ||
<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> | ||
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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 his or her compliance with the agreement | #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 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; | ||
#pay up to $5,000 as a fine | #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. | #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. | 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. FMEP cannot increase or decrease the amount of a spousal support obligation and it cannot reduce or cancel arrears of spousal support. | 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. | ||
==The | ==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 spousal support under which the arrears accumulated rather than an independent order about the 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 spousal support under which the arrears accumulated rather than an independent order about the arrears. | ||
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===Arrears under the ''Divorce Act''=== | ===Arrears under the ''Divorce Act''=== | ||
Section 17 of the ''Divorce Act'' says this about varying orders for spousal support: | Section 17 of the ''[[Divorce Act]]'' says this about varying orders for spousal support: | ||
<blockquote><tt>(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,</tt></blockquote> | <blockquote><tt>(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,</tt></blockquote> | ||
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<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.</tt></blockquote></blockquote> | ||
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 ''[[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''=== | ===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: | Unlike the ''[[Divorce Act]]'', the ''[[Family Law Act]]'' deals with the question of arrears directly. Section 174(1) of the act says this: | ||
<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>(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> | ||
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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 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''. | 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). | 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). | ||
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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. | 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 | ==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. | 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. | ||
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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: | 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: | ||
#garnishing the payor's wages | #garnishing the payor's wages, | ||
#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 his or her driver's licence | #prohibiting a payor from renewing his or her driver's licence, | ||
#directing the RCMP to seize a payor's passport | #directing the RCMP to seize a payor's passport, | ||
#registering a lien against personal property and real property owned by the payor | #registering a lien against personal property and real property owned by the payor, and | ||
#obtaining an order for the payor's arrest. | #obtaining an order for the payor's arrest. | ||
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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. | 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 | ===Separation agreements=== | ||
Section 163(3) of the ''Family Law Act'' allows 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. | Section 163(3) of the ''[[Family Law Act]]'' allows 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. | 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. | ||
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More information about enforcing agreements can be found in the chapter _____________ . | More information about enforcing agreements can be found in the chapter _____________ . | ||
===Orders | ===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 spousal 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. | 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 spousal 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 spousal 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. | The provincial ''Interjurisdictional Support Orders Act'' allows orders for spousal 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. | ||
