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Difference between revisions of "Spousal Support Arrears"
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→Retroactive reduction of support
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Among other things, the court must consider: | Among other things, the court must consider: | ||
*the circumstances surrounding the delay in bringing the application | *the circumstances surrounding the delay in bringing the application, and | ||
*any hardship caused by making or not making the order, to either party. | *any hardship caused by making or not making the order, to either party. | ||
Delay might be explained if the other party promised not to rely on the full amount, or if the payor was | Delay might be explained if the other party promised not to rely on the full amount, or if the payor was temporarily incapacitated, or was unable to get appropriate information or advice. But the delay will have to be explained somehow. The courts will not be sympathetic to someone who just chose to let it slide. | ||
Hardship is a two-way street. The court has to consider the position of both the payor and the recipient. If the recipient relied on the order or agreement and went into debt in the expectation that the arrears would eventually be paid, that weighs against granting relief. If, on the other hand, it was clear to both parties that the order or agreement was unreasonable in light of current circumstances, that weighs in favour of granting relief. A retroactive reduction will be very unlikely if it would require the recipient to pay back money already received and spent. | Hardship is a two-way street. The court has to consider the position of both the payor and the recipient. If the recipient relied on the order or agreement and went into debt in the expectation that the arrears would eventually be paid, that weighs against granting relief. If, on the other hand, it was clear to both parties that the order or agreement was unreasonable in light of current circumstances, that weighs in favour of granting relief. A retroactive reduction will be very unlikely if it would require the recipient to pay back money already received and spent. | ||
There was some doubt whether a retroactive reduction was allowed under the ''Family Law Act'', but several cases have held that it | There was some doubt whether a retroactive reduction was allowed under the ''Family Law Act'', but several cases have held that it is, including ''[http://canlii.ca/t/glb4d N.M. v G.M.]'', 2015 BCSC 1732. | ||
Remember, though, that a retroactive variation application can only adjust the arrears to what they should have been, had the order or agreement been adjusted for current circumstances in a timely manner. If arrears would still have accrued, it does not allow any relief beyond that. | Remember, though, that a retroactive variation application can only adjust the arrears to what they should have been, had the order or agreement been adjusted for current circumstances in a timely manner. If arrears would still have accrued, it does not allow any relief beyond that. | ||