Child Support Arrears

As with all decisions relating to children, there is no such thing as an absolutely final order or agreement for child support. It is always open to the court to change an order or agreement for child support, providing that the parties' circumstances, or the circumstances of the parties' children, have changed. Generally speaking, payors will want to apply to have support reduced or terminated when their income has decreased or the children have grown up, while recipients will want to apply to have support increased when the payor's income has gone up or if the children's special expenses have increased.

This chapter will deal with changing orders made under the federal Divorce Act and the provincial Family Relations Act, changing orders that were made before the federal Child Support Guidelines came into effect on 1 May 1997, and changing orders that were made in a different jurisdiction. This chapter will also discuss claims for retroactive support (a change in support that is to take effect on some date before the claim is made), including the important case of D.B.S. v. S.R.G.

I. Divorce Act Orders

Under s. 5 of the Divorce Act, the Supreme Court has the jurisdiction to vary an order for child support as long as either spouse was ordinarily resident in the province at the time the action started, no matter which province's courts made the original order. Section 17 of the Divorce Act gives the court the authority to change, cancel or suspend orders for support made under that act. "Changing" an order is called "varying" the order.

Section 17 of the Divorce Act says this:

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. (6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. (6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. (6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines. This all boils down to these principles:

a court can make an order changing a previous child support order if a change in circumstances has occured since the order was made; any new order for child support must be made according to the Child Support Guidelines; the court may make an order for support different from the Guidelines if a previous order or agreement has made special provisions for the care of the child which would make an order under the Guidelines inappropriate; and, the court may also make an order for support different from the Guidelines if both spouses agree to the order and reasonable arrangements have been made for the support of the children. Before the Child Support Guidelines came into effect, an applicant had to show that there had been a serious and unforeseen change in circumstances before the court would hear an application to vary an order for child support. Now, an applicant must only show that there has been a change in income or the child's expenses to show that there has been a change in circumstances.

Section 14 of the Guidelines defines a "change in circumstances" as follows:

For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; (b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ... A. Financial Statements When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables. Both parties must produce Financial Statements dealing with income if custody is shared or split. Both parties must produce complete Financial Statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children over the age of majority. These new Financial Statements give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order.

B. Statutory Provisions These are the primary sections of the Divorce Act dealing with varying child support orders.

s. 2: definitions s. 4: jurisdiction to make child support orders s. 5: jurisdiction to change orders s. 15.1: child support s. 15.3: child support has priority over spousal support s. 17: variation proceedings Back to the top of this chapter.

II. Family Relations Act Orders

Section 20 of the Family Relations Act gives a court the authority to cancel, vary or suspend an order for child support where "circumstances have changed" since the last order. Section 96 of the act deals with the variation of child support orders and provides, in part, as follows:

(1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any. (1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must (a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and (b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order. (1.2) Despite subsection (1.1)(b), a court may vary a maintenance order, as defined in section 87 respecting the obligation under section 88 to support and maintain children, to an amount that differs from the amount the court ascertains using the child support guidelines, if the court is satisfied that (a) provisions in an order, a judgment or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefit of the child, and (b) the application of the child support guidelines would be inequitable in the circumstances of the provisions to which paragraph (a) refers. This all boils down to the following:

any change in a child support order must take into account the means and needs of the parties; a court can only vary an order if there has been a change of circumstances, as defined by s. 14 of the Child Support Guidelines, since the last order; and, the court may make an order for support different from the Guidelines if a previous order or agreement has made special provisions for the care of the child which would make an order under the Guidelines unfair. A. Financial Statements When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court.

The payor must produce a Financial Statement dealing with his or her income if the payor is paying child support according to the tables. Both parties must produce Financial Statements dealing with income if custody is shared or split. Both parties must produce complete Financial Statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children over the age of majority. These new Financial Statements give the court the information it will need to make a new child support order, if it is in fact willing to vary the original order.

B. Statutory Provisions These are the primary sections of the Family Relations Act dealing with varying a child support order:

s. 1: definitions s. 9: interim orders s. 20: changing or cancelling orders s. 88: each parent has the obligation to support their children s. 91: who may apply for a child support order s. 96: variation proceedings Back to the top of this chapter.

III. Orders Made Before 1 May 1997

The fact that an order or agreement was made or entered into before the Child Support Guidelines came into effect does not mean that a court must change the order or agreement to comply with the Guidelines. Although s. 17(6.1) of the Divorce Act requires the court to make an order which complies with the Guidelines, this rule does not apply to agreements and orders made before 1 May 1997. Don't be discouraged by this, however, as the court still retains the discretion to apply the Guidelines and generally will.

If the difference between the old order and the order you seek is substantial, which it often will be, and the application is for an increased amount of child support, the court will likely be more willing to apply the Guidelines, as a higher amount of support is presumed to be in the best interests of children.

Back to the top of this chapter.

IV. Orders Made Outside British Columbia

It rarely easy to change an order made outside of British Columbia because of the respect our courts must give to the authority and jurisdiction of the court that made the original order. (There a bunch of other reasons why it can be hard to change an order made outside of British Columbia, but that's the meat of it.) The process that will apply depends entirely on whether the original order was made under the federal Divorce Act or under the family law legislation of the jurisdiction whose court made the original order.

A. Divorce Act Orders Orders that were made elsewhere in Canada under the federal Divorce Act can be changed here under s. 5 of the act, as long as both parties live in British Columbia. Where one party still lives in the province whose courts made the original order, a party living in BC can apply to change the original order using a process described in ss. 18, 19 and 20 of the act:

the applicant applies here for a "provisional" order changing the original order; the court sends the provisional order to the jursidiction that made the original order; and, on notice to the other party, the original court holds a hearing to "confirm" the provisional order. This process requires two hearings: one here in British Columbia for a provisional order, and a second in the original court to confirm that order. The court in the other province may or may not confirm the provisional order, and may chose to send the order back to BC for more information. Until the provisional order is confirmed, the provisional order has no effect and the original order will continue to be the operative order.

B. Other Orders Orders that were made elsewhere in Canada under provincial family law legislation, or were made in certain countries other than Canada, can be changed by someone living in British Columbia using the provincial Interjurisdictional Support Orders Act. Governments that have agreed to follow this process under the Interjurisdictional Support Orders Act are called "reciprocating jurisdictions."

The countries that will cooperate with a proceeding under the Interjurisdictional Support Orders Act are: South Africa, Zimbabe, 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 process under this act is as follows:

the applicant completes a bunch of forms provided by the provincial Reciprocals Office; our Reciprocals Office sends the forms to the court that made the original order; and, on notice of the other party, the original court holds a hearing on the applicant's application and may make an order varying the original order. Under this process, there is only one hearing which is held by the court that made the original order. The court in the reciprocating jurisdiction may or may not make the order that the applicant wants, and may send the application back to British Columbia for more information. The original order will continue in effect until the court in the reciprocating jurisdiction varies it.

This new process is intended to simplify things by having just the one hearing. To do that, however, the process relies very heavily on paperwork and the officials of our government and the government of the reciprocating jurisdiction. As a result, applications under the Interjurisdictional Support Orders Act can take a long time to process.

The British Columbia Reciprocals Office, along with all of the forms required by the Interjurisdictional Support Orders Act can be found at www.isoforms.bc.ca.

To vary an order of a country that does not participate in Interjurisdictional Support Orders Act applications, you will have to apply to vary the order in that country.

Back to the top of this chapter.

V. Retroactive Child Support

Someone making a claim for "retroactive child support" is seeking an order that is to take effect from some date in the past, before the date the claim is made or heard. Typically, someone receiving child support will ask for an increase in the amount of support payable dating back to when the payor's income went up. If the claim is successful, the payor will be obliged to start making payments in the amount of the new order, plus a lump sum representing the difference between the support that was paid and the support that ought to have been paid. This can sometimes be a significant financial hardship, particularly where the period of retroactive effect is long.

The trend in the recent case law on this subject has been to impose an on-going duty on payors to disclose their income, whether they are asked for this information or not, and the courts have been increasingly willing to subject payors to retroactive orders for child support.

A. The Basic Law: L.S. v. E.P. The case of L.S. v. E.P., a 1999 decision of our Court of Appeal, used to be the most important case on this issue in British Columbia, and still is the most important case for orders made under just the Family Relations Act. In this case, the court set out the factors should considered in deciding whether there should or should not be a retroactive order for support:

"A review of the case law reveals that there are a number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include: (1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parent; (2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for a delay in bringing the application where the delay is significant; and, (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end. "Factors which have militated against ordering retroactive maintenance include: (1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such a burden would interfere with ongoing support obligations; (2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and, (3) a significant, unexplained delay in bringing the application." When hearing an application for retroactive child support, the court would apply these factors in deciding whether a retroactive award was warranted and, if so, how much the award should be for and when the retroactive effect of the order should begin.

B. A Change in the Law for Divorce Act Orders: D.B.S. v. S.R.G. In July 2006, the Supreme Court of Canada released its judgment in four related cases, D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry and Hiemstra v. Hiemstra, and significantly clarified the law on retroactive child support, and where it changed the law the changes weren't all that far from our Court of Appeal's decision in L.S. v. E.P. These cases are referred to collectively as just "D.B.S. v. S.R.G."

The logic underlying the court's decision is this. Before the Child Support Guidelines came into effect, child support was determined using budgets and a means and needs analysis looking at the "means" of the parents and the real "needs" of the children. After the Guidelines came into effect on 1 May 1997, child support was expressly linked to the income of the payor, and the payor's duty was to pay support at the amount required for his or her income, using the tables attached to the Guidelines rather than budgets and the needs and means analysis. As a result, the court held that a duty to pay child support — whether under a separation agreement or a court order — is never final and absolute. No orders or agreements are final on the subject of support, and both parents have the obligation of ensuring that the right amount of child support is being paid on an ongoing basis.

The following is a summary of the important points in this decision.

The Rationale for Retroactive Support

Both parents have a duty "to ensure that their children are receiving a proper amount of support." "While the paying parent does not shoulder the burden of automatically adjusting payments" when his or her income increases, "this does not mean that (s)he will satisfy his/her child support obligation by doing nothing." If the payor's income increases and child support does not, "there will remain an unfulfilled obligation" that could warrant a retroactive award of support. When Retroactive Child Support Should be Ordered: when there is an existing order

Child support orders "must be considered presumptively valid." "Where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents' obligations." An obligation to pay the proper amount of support is "independent of any court order that may have been previously awarded." Where parents fail to adjust the amount of support payable, "a court may order an award that recognizes and corrects this failure." When Retroactive Child Support Should be Ordered: when there is an existing agreement

"A payor parent who adheres to a separation agreement that has not been endorsed by a court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does a parent acting pursuant to a court order." "Agreements reached by the parents should be given considerable weight." "Where circumstances have changed," such that the "actual support obligations of the payor have not been met, courts may order a retroactive award." When Retroactive Child Support Should be Ordered: when there is no order

There is "no restriction" as to "the date from which the court may order that the award take effect." "Courts will have the power to order original retroactive child support awards in appropriate circumstances." Factors in Making Retroactive Child Support Awards

The child must be eligible to receive support when the application for retroactive support is made; "child support is for children of the marriage, not for adults who used to have that status." The court has the discretion to award or not award retroactive support, but retroactive awards "need not be seen as exceptional." Retroactive child support should not be awarded if the child would not actually benefit from the award of if the award would cause hardship to the payor. "A court should strive for a holistic view of the matter and decide each case on the basis of its particular" facts. The recipient's delay in seeking an increase in support will not favour a retroactive award where the recipient "knew higher support payments were warranted, but decided arbitrarily not to apply." The recipient's delay will not be considered if the the recipient feared the payor's reaction or lacked "the financial or emotional means to bring an application, or was given inadequate legal advice." "Courts should not hesitate to take into account a payor's blameworthy conduct," and courts should "take an expansive view of what constitutes blameworthy conduct." Blameworthy conduct is "anything that privileges the payor parent's interests over his/her children's right to an appropriate amount of support," such as hiding income increases or intimidating a recipient from seeking an increase in support. How Far Back Child Support Awards should be Retroactive

The date of "effective notice" of the recipient's intention to seek an increase should be the furthest back a retroactive award should go. "Effective notice" doesn't mean the date of applying to court, but the date of notice of "any intention by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated" was given. Except where there is some blameworthy conduct on the part of the payor, it will "usually be inappropriate" to go further back in time than three years from the date of the hearing. Where there is blameworthy conduct, "the presumptive date of retroactivity" will be the time the payor's "circumstances changed materially." How Much Retroactive Child Support should be Ordered

Retroactive awards must ensure that the amount "fits the circumstances." "Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended." "It will be easier to show that a retroactive award causes undue hardship" than it is to show than a normal child support order causes undue hardship. A court "should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case." In other words, retroactive support may be awarded whenever a payor is paying less than the Child Support Guidelines requires, if his or financial circumstances change following the making of an order or agrement dealing with child support. In making such an order, the court must consider:

any excuse for the recipient’s delay in seeking an increase in support; any blameworthy conduct on the party of the payor; the circumstances of the child; and, any hardship that a retroactive award would cause to the payor. If a retroactive award is made, the award should be made retroactive to the date notice is given of the recipient's intention to seek an increase in the amount of support, but to a limit of three years. Where the payor’s conduct is blameworthy, then the support should be retroactive to the date of the change in the payor’s financial circumstances, and may be retroactive beyond the three year mark.

Further Reading in this Chapter

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