Difference between revisions of "Spousal Support Arrears"

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}}When a person who is obliged to pay spousal support fails to pay all of the spousal support they are required to pay, a debt begins to accumulate. The debt owing is called the payor's ''arrears'' of spousal support.


Spousal support is money paid by one spouse to the other to help that spouse cover his or her living expenses or as compensation for financial decisions made during the parties' relationship. The amount of child support payable is usually fixed according to tables contained in the Child Support Guidelines, which set support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.
People generally have two different goals when arrears begin to mount up. The person responsible for paying support, the ''payor'', likely wants the court to reduce or cancel the arrears, while the person receiving the support, while the ''recipient'', will want the court to force the payor to pay what's owing.


This chapter will discuss the basics of child support, child support orders under the ''Divorce Act'' and the ''Family Law Act'', and briefly look at how to get a child support order inside and outside of British Columbia. This chapter also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.
This section provides an introduction to the problem of spousal support arrears. It discusses the reduction and cancellation of arrears of spousal support and the collection of arrears.


==Introduction==
==Introduction==


After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child.
If spousal 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 can be contempt of court as well. The court places a high value on the financial support of spouses and will usually take an extremely dim view of anyone who defaults on such an obligation in the absence of a very good excuse or some very compelling circumstances.


Child support is a payment made by one parent or guardian, the ''payor'', to the other, the ''recipient'', to defray the costs the recipient bears as a result of the child, and the payment of child support consequently helps to maintain or improve the child's living conditions. Child support is not a supplement to spousal support; it's money that is paid for the benefit of the child, not the parent with whom the child lives. Child support is not a fee paid in exchange for time with the child; child support is entirely different and unrelated to parenting time, contact or access.
A person who owes arrears of spousal support, the ''payor'', will likely be interested in the ways that the outstanding amount can be reduced, while a person to whom support is owing, the ''recipient'', will be interested in collecting the arrears. Someone who owes arrears will generally have a difficult time convincing the court to reduce their debt. On the other hand, collecting arrears can be difficult as well, if for no other reason than 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 may never be recovered.


Child support is payable on the principle that both parents have a duty to financially contribute to the child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.
Despite these challenges, it is possible for a payor to have their arrears reduced and, sometimes, cancelled altogether. At the same time, recipients have <span class="noglossary">access</span> to some very powerful and effective enforcement tools to collect outstanding arrears of support.


An order for child support can be made under s. 15.1 of the federal ''Divorce Act'' or s. 149 of the provincial ''Family Law Act'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal Child Support Guidelines.
===Orders for spousal support===


The Guidelines contain a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described in the pages that follow. Certain changes to the tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.
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]]'', both the Supreme Court and the Provincial Court can require the payor to:


Both the ''Divorce Act'' and the ''Family Law Act'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take precedence.
*provide security for their compliance with the court order, in other words, pay an amount of money into the court which the court will hold to guarantee the payment of child support,
*pay any expenses incurred by the recipient as a result of the payor's failure to pay child support,
*pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's failure to pay child support, or
*pay up to $5,000 as a fine.


==The ''Divorce Act''==
If nothing else works to ensure that the payor complies with the child support order, the court can also jail the payor for up to 30 days.


The ''Divorce Act'' only applies to people who are or were married to each other, including parents and a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce : the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court.
Unfortunately for people who would rather be jailed than pay, section 231(3)(c) of the ''Family Law Act'' says that:


===Qualifying for Child Support===
<blockquote><tt>imprisonment of a person under this section does not discharge any duties of the person owing under an order.</tt></blockquote>


In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the act's definition of a "child of the marriage" in order to be eligible for support. There are a couple of important definitions in s. 2(1) which apply in determining whether a child is a child of the marriage:
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.


<blockquote><tt>"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;</tt></blockquote>
Payors can apply for an order reducing arrears of spousal support that have accumulated under a court order under both the ''[[Divorce Act]]'' and the ''Family Law Act''. Applications like these must be made under the same legislation under which the original spousal support order was made.
<blockquote><tt>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;</tt></blockquote></blockquote>


As well, s. 2(2) of the act says that:
===Agreements for spousal support===


<blockquote><tt>For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
Arrears that have accumulated under a separation agreement are owed because of the promises each party made to the other when they signed the agreement. A separation agreement is a contract that can be enforced in court, just like any other contract.
<blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>


Taken together these definitions mean that:
Agreements for support are most easily enforced by filing them in court. Once they are filed in court, agreements can be enforced just like they are court orders. (Although agreements can still be enforced under the law of contracts, it's a lot simpler to file them in court and take care of it that way.) Section 163(3) of the ''[[Family Law Act]]'' says:


#child support can be owing from an adoptive parent, as well as a natural parent;
<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>
#child support can be owing by stepparents (spouses who "stand in the place of a parent");
#child support is payable until a child reaches the age of majority in the province where the child lives; and,
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.


On this last point, the ''Divorce Act'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness which prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a child of the marriage include the following:
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. Alternatively, they can apply to set aside or change the agreement, going back in time or going forward, under sections 164 and 167 of the ''Family Law Act'', or ask for a spousal support order on terms different than their agreement under section 15.2 of the ''[[Divorce Act]]''.


#the age of the adult child;
===The Family Maintenance Enforcement Program===
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment;
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like;
#the child's academic performance and dedication to his or her studies;
#the spouses' financial situation; and,
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.


In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.
Although recipients can enforce orders and agreements for spousal support on their own, most of the time recipients will give that job to the [http://www.bcfma.ca BC Family Maintenance Agency], which is the name for what many still know as the Family Maintenance Enforcement Program. BCFMA is the new name for FMEP. This is a provincial government program under the provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' that tracks payments that are owing and those that are paid, calculates the interest owing on payments that are not made, and can impose fines when payments aren't made.  


As far as "age of majority" is concerned, keep in mind that it is the provinces which have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.
BCFMA is a free service for recipients. Its purpose is to enforce the payment of spousal support.  


===Statutory Provisions===
It's important to know that BCFMA can't change agreements and orders about spousal support. BCFMA can't increase or decrease the amount of a spousal support obligation and it can't reduce or cancel arrears of spousal support. BCFMA does not help recipients respond to applications to change support orders, set aside agreements, or reduce or cancel arrears. You'll have to do that on your own. But from the recipient's perspective, just having BCFMA take over enforcement of the order or agreement can be a huge relief.


The primary sections of the Divorce Act dealing with child support are these.
==Reducing and cancelling arrears==


*s. 2: definitions
Payors may apply to court to have their arrears of spousal support cancelled or reduced. When arrears are ''cancelled'', the debt is wiped out and the payor no longer owes money to the payor for their past spousal support obligation. When arrears are ''reduced'', there's still a debt owing to the recipient but the amount of the debt has been reduced to a smaller amount.
*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


==The ''Family Law Act''==
There are two ways to apply to court for orders reducing or cancelling arrears, and each has its own advantages and disadvantages. The first approach is to say, “Yes, that is the proper amount of arrears. I owe that, but I can’t pay it. Please give me a break on paying the debt I oew.” As you might expect, the courts usually take a fairly dim view of this approach, and the payor will have to show that payment of the amount of support owing will cause them significant hardship.


A parent or guardian can apply for child support under the ''Family Law Act'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, and if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been made a guardian of a child.
The second approach is to say, “Yes, this is the amount I owe under the original order or agreement, but my situation changed. If I had applied to change the order or agreement when my financial circumstances changed, the amount would have been reduced. Please let me apply now and recalculate how much I owe in light of my new financial circumstances.” This application asks the court to change the order or agreement going back in time, called a ''retroactive variation'' of the original order or agreement. The court will still require the payor to explain why they deserve a second chance, but it may be a little easier to persuade the court to do this than to just cancel or reduce the arrears owing.


Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.
Section 174 of the ''Family Law Act'' allows people to ask for a reduction or cancellation of arrears, and section 167 allows people to apply for the retroactive variation of support orders. Payors have a choice. This is important, because it's may be a little easier to succeed on a retroactive variation than on an application to cancel or reduce of arrears. Just be sure you are clear with the court which route you are taking.


===Qualifying for Child Support===
===Retroactively varying spousal support obligations===


Definitions play an important role in determining eligibility and responsibility for child support under the ''Family Law Act'', just as they do under the ''Divorce Act''. Section 147 of the ''Family Law Act'' says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:
Section 17 of the ''[[Divorce Act]]'' says this about varying orders for support:


<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) a support order or any provision thereof on application by either or both former spouses; ...</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><tt>(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. ...</Tt></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. ...</tt></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>
<blockquote><tt>(7) A variation order varying a spousal support order should</tt></blockquote>
<blockquote><blockquote><tt>(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and</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>


Section 146 gives a definition of ''stepparent'' for the definition of parent and says that:
Section 167 of the ''[[Family Law Act]]'' explicitly mentions the court's power to retroactively vary a support order. It says this:


<blockquote><tt>"stepparent" means a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life.</tt></blockquote>
<blockquote><tt>(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.</tt></blockquote>
<blockquote><tt>(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:</tt></blockquote>
<blockquote><blockquote><tt>(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.</tt></blockquote></blockquote>
<blockquote><tt>(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that</tt></blockquote>
<blockquote><blockquote><tt>(a) the order is necessary to relieve economic hardship that</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i)  arises from a change described in subsection (2) (a), and </tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii)  is related to the relationship between the spouses, and </tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order.</tt></blockquote></blockquote>


However, s. 147 puts some really important limits on support for minor children and on when stepparents are and aren't responsible to pay child support:
In 2006, the Supreme Court of Canada established rules for applying for retroactive child support, or for a retroactive ''increase'' in child support, in the case of D.B.S. v S.R.G. discussed in the chapter on [[Child Support]], under the section [[Making Changes to Child Support]]. In 2014 the case of [http://canlii.ca/t/g80ht G.M.W. v D.P.W.], our Court of Appeal said these principles also apply to applications for a retroactive ''reduction'' of child support. Both involve child support, but the rules are similar for spousal support, as the New Brunswick Court of Appeal said in its 2010 decision in [http://canlii.ca/t/27qrq P.M B. v. M.L.B.]:


<blockquote><tt>(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><tt>"I acknowledge D.B.S. v. S.R.G. speaks only of retroactive variation orders involving child support. Nothing is said about the analytical framework to be applied in regard to spousal support. For purposes of deciding this appeal, and as a general proposition, I can see no valid policy reason for distinguishing between child and spousal support when it comes to the retroactive variation of support arrears. ... Once the notion of fault is removed from the legal equation, be it the fault of the payer or payee, there is no need to distinguish between retroactive variation orders involving a decrease in child as opposed to spousal support."</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>
<blockquote><tt>(4) A child's stepparent does not have a duty to provide support for the child unless</tt></blockquote>
<blockquote><blockquote><tt>(a) the stepparent contributed to the support of the child for at least one year, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>


Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.
When hearing applications to retroactively reduce a spousal support obligation, the court must consider:


As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:
*the circumstances surrounding the delay in bringing the application to change the original order, and
*any hardship caused by making or not making the order, to either party.


#both parents are responsible to pay child support, no matter the nature of the parents' relationship;
The payor's delay might be explained if the recipient promised not to rely on the full amount or enforce the full amount payable, if the payor couldn't pursue the application because of illness or disability, or if the payor couldn't get appropriate information or advice. But the delay has to be explained somehow. The courts will not be sympathetic to payor who knew they were getting into debt but just chose to let it slide.
#child support can be payable by guardians and stepparents;
#the definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year;
#the phrase "contributed to the support of the child for at least one year" does not mean for one whole, consecutive calendar year;
#any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up;
#child support can be payable by a parent, a guardian and a stepparent, and by more than one stepparent, at the same time;
#a duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home; and,
#child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondry education.


On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:
Hardship, on the other hand, 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 fact suggests that the original order or agreement should not be reduced.  If, on the other hand, it was clear to both spouses that the order or agreement was unreasonable in light of their circumstances, that fact suggests that the original order or agreement should be reduced. A retroactive reduction will not usually be ordered if the reduction would require the recipient to pay back money already received and spent.


#the age of the adult child;
It is important to know that successful retroactive variation applications will only result in arrears being reduced to what they should have been if the order or agreement had been adjusted in a more timely manner. If arrears would have accumulated even on the new amount of spousal support, those arrears are still owing.
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment;
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like;
#the child's academic performance and dedication to his or her studies;
#the financial situations of the child's parents, guardians and stepparents; and,
#any plans the parties may have made for the child's post-secondary schooling while they were still together.


In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.
===Reducing and cancelling arrears without variation===


===Stepparents and Child Support===
The ''[[Divorce Act]]'' doesn't talk specifically about the reduction and cancellation of arrears. Instead, section 17 of the act says this:


The ''Family Law Act'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.
<blockquote><tt>(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,</tt></blockquote>
<blockquote><blockquote><tt>(a) a support order or any provision thereof on application by either or both former spouses;</tt></blockquote></blockquote>


A 2004 case of the British Columbia Supreme Court, ''H.J.H. v. N.H.H.'', a case decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centred around the wife's child from a previous relationship and whether the husband should have to support the child. The court found that the husband, who qualified as a stepparent under the act, was not responsible for paying support, because of the combined effect of the following factors:
Applications to reduce or cancel arrears of spousal support under the ''Divorce Act'' aren't often pursued, but do happen. [http://canlii.ca/t/1p6l3 Haisman v. Haisman], a 1994 decision of the Alberta Court of Appeal, and [http://canlii.ca/t/1d20m Earle v. Earle], a 1999 decision of our Supreme Court, are good examples of how the court deals with these applications. 


#the marriage was short;
The ''[[Family Law Act]]'' does talk about arrears. Section 174 says this:
#the stepparent's relationship with the child broke down shortly into the marriage;
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent;
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage;
#the child's biological parent was paying support; and,
#the parent had extended health and dental coverage for the child through the parent's employment.


The ''Family Law Act'' helps to clear up some of these confusing issues. Section 147(5) says:
<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>(2) For the purposes of this section, the court may consider</tt></blockquote>
<blockquote><blockquote><tt>(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) any circumstances that the court considers relevant.</tt></blockquote></blockquote>
<blockquote><tt>(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.</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>


<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
In general, under the ''Family Law Act'', arrears will only be cancelled if a payor can show they are unable to pay the arrears "now and in the future", which is what the Court of Appeal said in the 2015 case of [http://canlii.ca/t/gmc40 MacCarthy v. MacCarthy].  
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>


In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, look at the obligation of any non-parent guardians, and require stepparents only to make a sort of top-up payment rather than pay the full amount required by the Guidelines.
If you are asking the court to make an order reducing or cancelling 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. The courts have interpreted "gross unfairness" under the ''Family Law 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. The leading case that describes the legal principles about cancelling arrears is a 1999 case called [https://canlii.ca/t/1d20m Earle v. Earle], in which the court said this:


===Statutory Provisions===
<blockquote><tt>"There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so."</tt></blockquote>


The primary sections of the ''Family Law Act'' dealing with child support are these.
You must also be prepared to address the factors set out in section 174(2).


*s. 1: definitions
*What efforts have you made to pay the spousal support you were required to pay?
*s. 146: more definitions
*Why didn't you try to change the spousal support before arrears had accumulated?
*s. 147: duty to pay child support
*Why can't you pay the arrears now?
*s. 148: agreements about child support
*Are there any other circumstances, such as catastrophic business losses or an unintended loss of employment, or new financial obligations in relation to a new family, that the court should take into <span class="noglossary">account</span>?
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 173: child support has priority over spousal support


==Getting a Child Support Order==
Be prepared to provide a court form called a financial statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court, that summarizes all of your assets and debts, and income and expenses, if you intend to show the court that you cannot pay your arrears. Complete financial disclosure is absolutely essential.


There are five things the court must consider before a child support order can be made.
==Collecting arrears of support==


*Does the person asking for the order have the right to claim child 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 BC Family Maintenance Agency, or BCFMA (formerly the Family Maintenance Enforcement Program, or FMEP). Someone who is entitled to receive child support or spousal support under an agreement or order can sign up with this program and the program will tend to the enforcement of the agreement or order without a great deal of further involvement on the part of the recipient.
*Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
*How long should the child receive receive support?
*How much support should the child receive?


First, the court must find that the person applying for a child support order, the ''Applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. Under the ''Divorce Act'', the Applicant must be a spouse who has lived in the province in which they the application is made for at least one year. Under the ''Family Law Act'', the Applicant can be anyone included in the definitions of ''parent'' or ''guardian'', and, if the claim is being made against a stepparent, the claim must be made within one year after the stepparent last contributed to the child's upkeep and after the stepparent and parent have separated.
BCFMA is free for recipients. All you have to do is file your agreement or order with the program and fill out an application form. (Agreements about spousal support must be filed in court first.) BCFMA will take the matter from there, and the program is authorized by the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' to take whatever legal steps may be required to enforce an ongoing support obligation, and track and collect on any unpaid support and the interest accumulating on any unpaid support.


Second, the court must find that the child qualifies as a ''child'' as defined by the ''Family Law Act'' or as a ''child of the marriage'' as defined by the ''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of his or her parents or guardians.
The ''Family Maintenance Enforcement Act'' gives BCFMA a lot power to collect spousal support. The program can start and manage all of the court proceedings that can be undertaken by a private creditor, as well as some unique actions that the program alone can take. BCFMA can also:


Third, the court must find that the person against whom the claim is made is liable to pay child support. This is also a matter of fitting within the definitions.
*garnish the payor's wages,
*collect from a corporation wholly owned by the payor,
*redirect federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient,
*prohibit a payor from renewing their driver's licence,
*direct the federal government to refuse to issue a new passport to the payor or to suspend the payor's current passport,
*register a lien against personal property and real property owned by the payor, and
*get an order for the payor's arrest.


If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the Child Support Guidelines based on the number of children and the payor's income. There are exceptions to this basic rule, such as when payors are guardians or stepparents, have their children for more than 40% of the children's time or if custody of the children is split between or shared by the parties. These and more exceptions are discussed in the page _______ .
While it is possible to make collection or enforcement efforts on your own, this will cost money and time and possibly require you to hire a lawyer and bear that expense as well. Since any private collection efforts you might take may interfere with efforts being made by BCFMA, recipients enrolled with BCFMA are required to get the permission of the program's director before they take independent enforcement steps.


Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''Divorce Act'' and the ''Family Law Act'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.
You can find more information about enforcing orders in the chapter [[Resolving Family Law Problems in Court]] within the section [[Enforcing Orders in Family Matters]]. You can also find more information at the website of the [http://www.justice.gc.ca/eng/fl-df/enforce-execution/index.html Department of Justice], which includes a helpful overview of support enforcement mechanisms in Canada.


===Getting an Order inside British Columbia===
===Separation agreements===


A parent or guardian seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent wants to proceed in, the parent must start a court proceeding. The process for starting a court proceeding is described in the page _______ .
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, nor is it necessary that the agreement be a British Columbia agreement.


===Getting an Order outside British Columbia===
BCFMA 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.


A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:
You can find more information about enforcing agreements in the chapter [[Family Law Agreements]], in the section [[Enforcing Family Law Agreements]].


#start the application process here, in British Columbia, using the provincial ''Interjurisdictional Support Orders Act'';
===Orders made outside British Columbia===
#start a court proceeding in the place where the other parent lives; or,
#start a court proceeding here under the ''Divorce Act'' or the ''Family Law Act'', get a child support order, and try to enforce that order in the place where the other parent lives.


The ''Interjurisdictional Support Orders Act'' allows a person living in BC to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The Applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the Reciprocals Office where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the ''Family Law Act'' or the ''Divorce Act''.
It's a little harder to enforce orders for spousal support that are made elsewhere against payors living in British Columbia because the recipient needs the help of the British Columbia courts to collect against a British Columbia resident. However, both the federal ''Divorce Act'' and the provincial ''Interjurisdictional Support Orders Act'' have special processes that can help.  


Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place where the other parent lives hasn't made an agreement with British Columbia about child support orders, someone who wants to get a child support order will normally have to start a court proceeding in the place where the other parent lives. This will require hiring a lawyer in that country, and the law that will apply will be the laws of that country, not the ''Family Law Act'' or the ''Divorce Act''.
====Canadian spousal support orders====


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 and Northern Ireland, 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. (Check the Interjurisdictional Support Orders Regulation, at the BC Laws website, for the current list.)
Section 20(2) of the ''[[Divorce Act]]'' says that an order under the act has legal effect throughout Canada. Section 20(3) also says that such orders may be filed in the courts of any province and be enforced as if they were an order of the courts of that province. In other words, if your divorce order was made in Prince Edward Island and contains a term requiring that spousal support be paid, you can file that order in the Supreme Court of British Columbia and it will have the same effect and be enforceable here, just as if it were an order of the Supreme Court of British Columbia.


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.
Spousal support orders that are made under the legislation of another province can be filed for enforcement in British Columbia under sections 17 and 18 of the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. In this process, the recipient provides a copy of the order to the Reciprocals Office in their province, which then sends the order to the [http://www.isoforms.bc.ca British Columbia Reciprocals Office]. The Reciprocals Office here then files the order in court, and, once filed the order has the same effect as an order of the courts of British Columbia.


==Income Tax Considerations==
You can find more information about enforcing orders generally in the chapter [[Resolving Family Law Problems in Court]] under the section [[Enforcing Orders in Family Matters]].


It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. On 25 April 1997, the federal ''Income Tax Act'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.
====Orders made outside of Canada====


These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the Child Support Guidelines came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.
A number of other countries have agreements with British Columbia about the enforcement of spousal support orders. Recipients living in those countries can follow the ''Interjurisdictional Support Orders Act'' process to have their orders filed and enforced here. The countries with agreements with British Columbia are:


The portion of a lawyer's bill attributable to obtaining, increasing or enforcing a child support order is tax deductible. The cost of defending a claim for child support is not deductible. Read the Canada Revenue Agency's Interpretation Bulletin IT-99R5 for the fine print.
* United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands
* Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea
* Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland
* Caribbean — Barbados and its Dependencies
* Africa — South Africa, Zimbabwe
* Asia — Hong Kong, Republic of Singapore


To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of his or her fees were attributable to advancing a child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case, so that he or she can keep a log of time spent on the child support claim.
See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list.


==Child Support and Social Assistance==
The same sort of process is also available under section 19.1 of the ''Divorce Act'', and the same countries that have agreements with British Columbia for the ''Interjurisdictional Support Orders Act'' also have agreements with Canada about the enforcement of spousal support orders.


When a parent entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.
==Resources and links==


===Recipients of Social Assistance Applying for Child Support===
===Legislation===


If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments; your case worker will tell you how much.
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[https://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[https://canlii.ca/t/84h5  Court Order Enforcement Act]''
* ''[https://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''


The collection of child support payments for people on social assistance is run by the Family Maintenance Program. (This is a different organization than the Family Maintenance Enforcement Program which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to co-operate with FMP's actions, but they will be responsible for managing any court applications they begin.
===Links===


===Applying for Child Support from a Recipient of Social Assistance===
* [https://www.bcfma.ca BC Family Maintenance Agency website] (formerly FMEP)
* [https://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [https://www.clicklaw.bc.ca/global/search?f=Family+law%7c1160&so=v Spousal support resources on Clicklaw]


You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $10,800 per year.


Even if you're not likely to get a lot of money out of the other parent, it's often a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''Family Law Act'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.
{{REVIEWED | reviewer = [[JP Boyd]], 30 June 2022}}


==Children's Right to Claim Child Support==
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In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.
 
===When There is an Order Between the Parents===
 
A parent can only be subject to a single order to pay child support with respect to a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.


When someone does not pay child support, or pays less that he or she is required to pay, ''arrears'' build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order which requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''Court Order Enforcement Act'', which allows the debtor's wages and benefits to be garnished, real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''Court Order Interest Act'', is owing on judgment debts.
[[Category:JP Boyd on Family Law]]
 
A child who is the subject of a child support order can apply to enforce any arrears as a judgment debt. The child can apply to enforce the old order starting when he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.
 
There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''Limitation Act'', the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is ''Schmitke v. Schmitke'', a 1993 decision of the Supreme Court, in which the judge concluded that:
 
<blockquote>"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the ''Limitation Act'', the running of time is postponed so long as she is a minor."</blockquote>
 
===When There isn't an Order Between the Parents===
 
Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.
 
First, the child cannot apply for child support under the ''Divorce Act'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under s. 15.1 of the act, the court can only order "a spouse" to pay child support. The only other law which might apply is the ''Family Law Act''. Section 147(1) says that "each parent and guardian of a child" is responsible for supporting that child; s. 149(2)(b) says that child can apply for a support order.
 
Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.
 
Why would the court make this assumption? Think of it like this. The ''Divorce Act'', the ''Family Law Act'' and the Child Support Guidelines say that all of a child's parents and guardians are liable for supporting the child. In fact, s. 215 of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life."
 
The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.
 
Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''Family Law Act'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, children under the age of 19 are under a legal disability which means they cannot start a court proceeding and apply for child support on their own.
 
This leaves two options. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.
 
Let's look at two examples to see how this all works.
 
Example #1
 
<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child is cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>
 
Example #2
 
<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
 
===Summary===
 
That was all a bit complicated. Here's what it boils down to.
 
*Children will not be able to apply for a child support order when there's an existing child support order.
*If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the ''Court Order Enforcement Act'', but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
*Children can only claim new child support orders under the ''Family Law Act''. They cannot apply under the ''Divorce Act''.
*Children who live at home with both parents cannot apply for child support.
*A child bringing a claim for child support must qualify as a ''child'' within the meaning of s. 146 of the ''Family Law Act''.
*Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically.
*Adult children will also have to show financial need before the court will make a support order.
 
If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.
 
==Further Reading in this Chapter==
 
* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
 
==Page Resources and Links==
 
===Legislation===
 
* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
FLA, DA, ISOA, federal income tax act, CSG, COEA, COIA, limitation act
 
===Links===
 
* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
Reciprocals office, FMP FMEP, tax bulletin, CRA
 
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When a person who is obliged to pay spousal support fails to pay all of the spousal support they are required to pay, a debt begins to accumulate. The debt owing is called the payor's arrears of spousal support.

People generally have two different goals when arrears begin to mount up. The person responsible for paying support, the payor, likely wants the court to reduce or cancel the arrears, while the person receiving the support, while the recipient, will want the court to force the payor to pay what's owing.

This section provides an introduction to the problem of spousal support arrears. It discusses the reduction and cancellation of arrears of spousal support and the collection of arrears.

Introduction

If spousal 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 can be contempt of court as well. The court places a high value on the financial support of spouses and will usually take an extremely dim view of anyone who defaults on such an obligation in the absence of a very good excuse or some very compelling circumstances.

A person who owes arrears of spousal support, the payor, will likely be interested in the ways that the outstanding amount can be reduced, while a person to whom support is owing, the recipient, will be interested in collecting the arrears. Someone who owes arrears will generally have a difficult time convincing the court to reduce their debt. On the other hand, collecting arrears can be difficult as well, if for no other reason than 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 may never be recovered.

Despite these challenges, it is possible for a payor to have their 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 spousal 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, both the Supreme Court and the Provincial Court can require the payor to:

  • provide security for their compliance with the court order, in other words, pay an amount of money into the court which the court will hold to guarantee the payment of child support,
  • pay any expenses incurred by the recipient as a result of the payor's failure to pay child support,
  • pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's failure to pay child support, or
  • pay up to $5,000 as a fine.

If nothing else works to ensure that the payor complies with the child support order, the court can also jail the payor for up to 30 days.

Unfortunately for people who would rather be jailed than pay, section 231(3)(c) of the Family Law Act says that:

imprisonment of a person under this section does not discharge any duties of the person owing under an order.

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.

Payors can apply for an order reducing arrears of spousal support that have accumulated under a court order under both the Divorce Act and the Family Law Act. Applications like these must be made under the same legislation under which the original spousal support order was made.

Agreements for spousal support

Arrears that have accumulated under a separation agreement are owed because of the promises each party made to the other when they signed the agreement. A separation agreement is a contract that can be enforced in court, just like any other contract.

Agreements for support are most easily enforced by filing them in court. Once they are filed in court, agreements can be enforced just like they are court orders. (Although agreements can still be enforced under the law of contracts, it's a lot simpler to file them in court and take care of it that way.) Section 163(3) of the Family Law Act says:

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.

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. Alternatively, they can apply to set aside or change the agreement, going back in time or going forward, under sections 164 and 167 of the Family Law Act, or ask for a spousal support order on terms different than their agreement under section 15.2 of the Divorce Act.

The Family Maintenance Enforcement Program

Although recipients can enforce orders and agreements for spousal support on their own, most of the time recipients will give that job to the BC Family Maintenance Agency, which is the name for what many still know as the Family Maintenance Enforcement Program. BCFMA is the new name for FMEP. This is a provincial government program under the provincial Family Maintenance Enforcement Act that tracks payments that are owing and those that are paid, calculates the interest owing on payments that are not made, and can impose fines when payments aren't made.

BCFMA is a free service for recipients. Its purpose is to enforce the payment of spousal support.

It's important to know that BCFMA can't change agreements and orders about spousal support. BCFMA can't increase or decrease the amount of a spousal support obligation and it can't reduce or cancel arrears of spousal support. BCFMA does not help recipients respond to applications to change support orders, set aside agreements, or reduce or cancel arrears. You'll have to do that on your own. But from the recipient's perspective, just having BCFMA take over enforcement of the order or agreement can be a huge relief.

Reducing and cancelling arrears

Payors may apply to court to have their arrears of spousal support cancelled or reduced. When arrears are cancelled, the debt is wiped out and the payor no longer owes money to the payor for their past spousal support obligation. When arrears are reduced, there's still a debt owing to the recipient but the amount of the debt has been reduced to a smaller amount.

There are two ways to apply to court for orders reducing or cancelling arrears, and each has its own advantages and disadvantages. The first approach is to say, “Yes, that is the proper amount of arrears. I owe that, but I can’t pay it. Please give me a break on paying the debt I oew.” As you might expect, the courts usually take a fairly dim view of this approach, and the payor will have to show that payment of the amount of support owing will cause them significant hardship.

The second approach is to say, “Yes, this is the amount I owe under the original order or agreement, but my situation changed. If I had applied to change the order or agreement when my financial circumstances changed, the amount would have been reduced. Please let me apply now and recalculate how much I owe in light of my new financial circumstances.” This application asks the court to change the order or agreement going back in time, called a retroactive variation of the original order or agreement. The court will still require the payor to explain why they deserve a second chance, but it may be a little easier to persuade the court to do this than to just cancel or reduce the arrears owing.

Section 174 of the Family Law Act allows people to ask for a reduction or cancellation of arrears, and section 167 allows people to apply for the retroactive variation of support orders. Payors have a choice. This is important, because it's may be a little easier to succeed on a retroactive variation than on an application to cancel or reduce of arrears. Just be sure you are clear with the court which route you are taking.

Retroactively varying spousal support obligations

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

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; ...

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. ...

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. ...

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

Section 167 of the Family Law Act explicitly mentions the court's power to retroactively vary a support order. It says this:

(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.

(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that

(a) the order is necessary to relieve economic hardship that

(i) arises from a change described in subsection (2) (a), and

(ii) is related to the relationship between the spouses, and

(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order.

In 2006, the Supreme Court of Canada established rules for applying for retroactive child support, or for a retroactive increase in child support, in the case of D.B.S. v S.R.G. discussed in the chapter on Child Support, under the section Making Changes to Child Support. In 2014 the case of G.M.W. v D.P.W., our Court of Appeal said these principles also apply to applications for a retroactive reduction of child support. Both involve child support, but the rules are similar for spousal support, as the New Brunswick Court of Appeal said in its 2010 decision in P.M B. v. M.L.B.:

"I acknowledge D.B.S. v. S.R.G. speaks only of retroactive variation orders involving child support. Nothing is said about the analytical framework to be applied in regard to spousal support. For purposes of deciding this appeal, and as a general proposition, I can see no valid policy reason for distinguishing between child and spousal support when it comes to the retroactive variation of support arrears. ... Once the notion of fault is removed from the legal equation, be it the fault of the payer or payee, there is no need to distinguish between retroactive variation orders involving a decrease in child as opposed to spousal support."

When hearing applications to retroactively reduce a spousal support obligation, the court must consider:

  • the circumstances surrounding the delay in bringing the application to change the original order, and
  • any hardship caused by making or not making the order, to either party.

The payor's delay might be explained if the recipient promised not to rely on the full amount or enforce the full amount payable, if the payor couldn't pursue the application because of illness or disability, or if the payor couldn't get appropriate information or advice. But the delay has to be explained somehow. The courts will not be sympathetic to payor who knew they were getting into debt but just chose to let it slide.

Hardship, on the other hand, 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 fact suggests that the original order or agreement should not be reduced. If, on the other hand, it was clear to both spouses that the order or agreement was unreasonable in light of their circumstances, that fact suggests that the original order or agreement should be reduced. A retroactive reduction will not usually be ordered if the reduction would require the recipient to pay back money already received and spent.

It is important to know that successful retroactive variation applications will only result in arrears being reduced to what they should have been if the order or agreement had been adjusted in a more timely manner. If arrears would have accumulated even on the new amount of spousal support, those arrears are still owing.

Reducing and cancelling arrears without variation

The Divorce Act doesn't talk specifically about the reduction and cancellation of arrears. Instead, section 17 of the act says this:

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses;

Applications to reduce or cancel arrears of spousal support under the Divorce Act aren't often pursued, but do happen. Haisman v. Haisman, a 1994 decision of the Alberta Court of Appeal, and Earle v. Earle, a 1999 decision of our Supreme Court, are good examples of how the court deals with these applications.

The Family Law Act does talk about arrears. Section 174 says this:

(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.

(2) For the purposes of this section, the court may consider

(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,

(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and

(c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(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.

In general, under the Family Law Act, arrears will only be cancelled if a payor can show they are unable to pay the arrears "now and in the future", which is what the Court of Appeal said in the 2015 case of MacCarthy v. MacCarthy.

If you are asking the court to make an order reducing or cancelling 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. The courts have interpreted "gross unfairness" under the Family Law 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. The leading case that describes the legal principles about cancelling arrears is a 1999 case called Earle v. Earle, in which the court said this:

"There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so."

You must also be prepared to address the factors set out in section 174(2).

  • What efforts have you made to pay the spousal support you were required to pay?
  • Why didn't you try to change the spousal support before arrears had accumulated?
  • Why can't you pay the arrears now?
  • Are there any other circumstances, such as catastrophic business losses or an unintended loss of employment, or new financial obligations in relation to a new family, that the court should take into account?

Be prepared to provide a court form called a financial statement, Form F8 in the Supreme Court and Form 4 in the Provincial Court, that summarizes all of your assets and debts, and income and expenses, if you intend to show the court that you cannot pay your arrears. Complete financial disclosure is absolutely essential.

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 BC Family Maintenance Agency, or BCFMA (formerly the Family Maintenance Enforcement Program, or FMEP). Someone who is entitled to receive child support or spousal support under an agreement or order can sign up with this program and the program will tend to the enforcement of the agreement or order without a great deal of further involvement on the part of the recipient.

BCFMA is free for recipients. All you have to do is file your agreement or order with the program and fill out an application form. (Agreements about spousal support must be filed in court first.) BCFMA will take the matter from there, and the program is authorized by the Family Maintenance Enforcement Act to take whatever legal steps may be required to enforce an ongoing support obligation, and track and collect on any unpaid support and the interest accumulating on any unpaid support.

The Family Maintenance Enforcement Act gives BCFMA a lot power to collect spousal support. The program can start and manage all of the court proceedings that can be undertaken by a private creditor, as well as some unique actions that the program alone can take. BCFMA can also:

  • garnish the payor's wages,
  • collect from a corporation wholly owned by the payor,
  • redirect federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient,
  • prohibit a payor from renewing their driver's licence,
  • direct the federal government to refuse to issue a new passport to the payor or to suspend the payor's current passport,
  • register a lien against personal property and real property owned by the payor, and
  • get an order for the payor's arrest.

While it is possible to make collection or enforcement efforts on your own, this will cost money and time and possibly require you to hire a lawyer and bear that expense as well. Since any private collection efforts you might take may interfere with efforts being made by BCFMA, recipients enrolled with BCFMA are required to get the permission of the program's director before they take independent enforcement steps.

You can find more information about enforcing orders in the chapter Resolving Family Law Problems in Court within the section Enforcing Orders in Family Matters. You can also find more information at the website of the Department of Justice, which includes a helpful overview of support enforcement mechanisms in Canada.

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, nor is it necessary that the agreement be a British Columbia agreement.

BCFMA 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.

You can find more information about enforcing agreements in the chapter Family Law Agreements, in the section Enforcing Family Law Agreements.

Orders made outside British Columbia

It's a little harder to enforce orders for spousal support that are made elsewhere against payors living in British Columbia because the recipient needs the help of the British Columbia courts to collect against a British Columbia resident. However, both the federal Divorce Act and the provincial Interjurisdictional Support Orders Act have special processes that can help.

Canadian spousal support orders

Section 20(2) of the Divorce Act says that an order under the act has legal effect throughout Canada. Section 20(3) also says that such orders may be filed in the courts of any province and be enforced as if they were an order of the courts of that province. In other words, if your divorce order was made in Prince Edward Island and contains a term requiring that spousal support be paid, you can file that order in the Supreme Court of British Columbia and it will have the same effect and be enforceable here, just as if it were an order of the Supreme Court of British Columbia.

Spousal support orders that are made under the legislation of another province can be filed for enforcement in British Columbia under sections 17 and 18 of the Interjurisdictional Support Orders Act. In this process, the recipient provides a copy of the order to the Reciprocals Office in their province, which then sends the order to the British Columbia Reciprocals Office. The Reciprocals Office here then files the order in court, and, once filed the order has the same effect as an order of the courts of British Columbia.

You can find more information about enforcing orders generally in the chapter Resolving Family Law Problems in Court under the section Enforcing Orders in Family Matters.

Orders made outside of Canada

A number of other countries have agreements with British Columbia about the enforcement of spousal support orders. Recipients living in those countries can follow the Interjurisdictional Support Orders Act process to have their orders filed and enforced here. The countries with agreements with British Columbia are:

  • United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands
  • Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea
  • Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland
  • Caribbean — Barbados and its Dependencies
  • Africa — South Africa, Zimbabwe
  • Asia — Hong Kong, Republic of Singapore

See the Interjurisdictional Support Orders Regulation for the current list.

The same sort of process is also available under section 19.1 of the Divorce Act, and the same countries that have agreements with British Columbia for the Interjurisdictional Support Orders Act also have agreements with Canada about the enforcement of spousal support orders.

Resources and links

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 30 June 2022.


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