Spousal Support Arrears: Difference between revisions

When a person who is obliged to pay child support fails to meet some or all of that obligation, a debt begins to accumulate and the amount owing is called the payor's ''arrears'' of support. People generally have two different goals when arrears begin to mount up: the person responsible for paying support likely wants the court to reduce or cancel the arrears, while the person receiving the support will want the court to force the payor to pay what's owing.

This page provides an introduction to the problem of arrears, and a discussion of the reduction and cancellation of arrears of child support is followed by a discussion of the collection of arrears.

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 sympathetic circumstances.

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 his or her debt. On the other hand, collecting arrears can be difficult as well, if for no other reason than the fact that 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.

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:

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 monthly payment of support is no longer required, often when the child reaches the age of majority.

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 148(2) of the ''Family Law Act'' says:

<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>

Although recipients can enforce orders and agreements for child support on their own, most of the time recipients will give that job to the Family Maintenance Enforcement Program, a provincial government program under the provincial ''Family Maintenance Enforcement Act'' which has been contracted out to an American company, Maximus (Themis), not that you'd know this from the government website. FMEP is free service for recipients that is largely funded by late fees and penalties charged to delinquent payors.

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.

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 child support under which the arrears accumulated rather than an independent order about the arrears.

Section 17 of the ''Divorce Act'' says this about varying orders for child support:

<blockquote><tt>(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.</tt></blockquote>

<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>

*What efforts have you made to pay the child support you were required to pay?

*Why did you wait until arrears had accumulated before you tried to vary the child support order?

*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 which the court should take into account?

Section 148(3) of the ''Family Law Act allow'' 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 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 child 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 child 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.