Child Support Arrears

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

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

Introduction

If child support is owed under a court order or an agreement, a failure to pay the support owing is a breach of that order or agreement, and, in the case of orders, it's contempt of court as well. The courts and society as a whole place a high value on the financial support of children, and both take an extremely dim view of anyone who defaults on such an obligation in the absence of a very good excuse or some very sympathetic circumstances.

A person who owes arrears of child support, a payor, will likely be interested in the ways that the outstanding amount can be reduced, while a person to whom support is owing, a recipient, will be interested in collecting on the arrears. A person who owes arrears will generally have a difficult time convincing the court to forgive all or some of his or her debt. On the other hand, collecting arrears can be difficult as well, if for no other reason than the fact that you can't get blood from a stone. Unless the payor has another source of funds to draw upon, a recipient may discover that the outstanding support will never be recovered.

Despite these barriers and obstacles, it is possible for a payor to have his or her arrears reduced and, sometimes, cancelled altogether. At the same time, recipients have access to some very powerful and effective enforcement tools to collect outstanding arrears of support.

Orders for Support

Orders for the payment of child support are enforceable like any other order of the court. Someone who breaches a Supreme Court order can be punished for contempt of court. As well, under the Family Law Act, the Supreme Court and the Provincial Court can:

1. require the payor to provide security for his or her compliance with the court order;
2. pay any expenses incurred by the recipient as a result of the payor's actions;
3. pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions;
4. pay up to $5,000 as a fine; or,
5. if nothing else will ensure the payor's compliance with the order, jail the payor for up to 30 days.

Unfortunately for people who would rather be jailed than pay, s. 231(3)(c) 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 monthly payment of support is no longer required, often when the child reaches the age of majority.

Payors can apply for an order reducing arrears that have accumulated under a court order under both the Divorce Act and the Family Law Act. Such applications must be made using the act under which the support order was made.

Agreements for Support

Arrears that have accumulated under a separation agreement are owed as a result of a contractual obligation to provide support. A separation agreement is a contract that can be enforced in the courts just like any other contract.

Agreements for support are most easily enforced by filing them in court, after which they can be enforced as if they were court orders. Although agreements can still be enforced under the law of contracts, it's a lot simpler to file them in court. Section 148(2) of the Family Law Act says:

A written agreement respecting child support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

As a result, the Supreme Court and the Provincial Court can:

1. require the payor to provide security for his or her compliance with the agreement;
2. pay any expenses incurred by the recipient as a result of the payor's actions;
3. pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions;
4. pay up to $5,000 as a fine; or,
5. if nothing else will ensure the payor's compliance with the agreement, jail the payor for up to 30 days.

Payors can apply under s. 174 of the Family Law Act for an order reducing arrears that have accumulated under an agreement that has been filed in court just like they can for arrears accumulating under an order.

The Family Maintenance Enforcement Program

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

FMEP has no discretion to change the orders and agreements that are filed with it for enforcement, although it will make important, judge-like decisions about who is and isn't entitled to receive child support. FMEP cannot increase or decrease the amount of a child support obligation and it cannot reduce or cancel arrears of child support.

The Reduction and Cancellation of Arrears

Payors may apply to court to have their arrears cancelled or reduced; technically, this is in some ways an application to vary the order or agreement for child support under which the arrears accumulated rather than an independent order about the arrears.

Arrears under the Divorce Act

Section 17 of the Divorce Act says this about varying orders for child 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; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(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) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

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

The Divorce Act does not deal expressly with arrears; applications under the act to reduce arrears are simply variation applications. The test the court will apply is similar to the test it applies for orders made under the Family Law Act.

Arrears under the Family Law Act

Unlike the Divorce Act, the Family Law Act deals with the question of arrears directly. Section 174(1) of the act 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.

A similar section of the old Family Relations Act was described as a "complete code" regarding the reduction or cancellation of arrears under that act, meaning that the only ground on which a court can reduce or cancel arrears was "gross unfairness," as set out in s. 96(2). I expect the courts will take the same approach to s. 174 of the Family Law Act.

The courts have interpreted "gross unfairness" under the Family Relations Act to mean that the payor is not only incapable of repaying the arrears but is also unlikely to be able to repay them in the foreseeable future without suffering severe financial hardship. If you are asking the court to make an order of reducing arrears, you must be prepared to prove that it would be not just unfair but grossly unfair for you to have to pay off the arrears, and you must be prepared to address the criteria set out in s. 174(2).

• What efforts have you made to pay the child support you were required to pay?
• Why did you wait until arrears had accumulated before you tried to vary the child support order?
• Why can you not pay your arrears now?
• Are there any other circumstances, such as catastrophic business losses or the unintended loss of your employment, changes in the children's residence, or new financial obligations in relation to your family which the court should take into account?

Be prepared to provide to the court a Financial Statement summarizing all of your assets and income, liabilities and expenses, if you intend to show the court that you cannot pay your arrears. Complete financial disclosure is absolutely essential.

Collecting Arrears of Support

The collection of debts and enforcement of judgments occupies a whole course at law school and is not a simple matter. The provincial government has, however, established an agency responsible for enforcing support obligations, the Family Maintenance Enforcement Program. Someone entitled to receive support under an order or agreement can sign up with this program and the program will tend to the enforcement support without a great deal of further involvement on the part of the recipient.

FMEP is free for recipients. All you have to do is file your order or filed separation agreement with the program and fill out an application form. FMEP will take the matter from there, and the program is authorized by the Family Maintenance Enforcement Act to take whatever legal steps are required to enforce an ongoing support obligation, and track and collect on any outstanding arrears, plus interest accumulating on those arrears.

Under the Family Maintenance Enforcement Act, FMEP has the authority to commence and conduct any court proceedings that can be undertaken by a private creditor, as well as some unique actions that the program alone can take. Among FMEP's collection powers are:

1. garnishing the payor's wages;
2. collecting from a corporation wholly owned by the payor;
3. redirecting federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient;
4. prohibiting a payor from renewing his or her driver's licence;
5. directing the RCMP to seize a payor's passport;
6. registering a lien against personal property and real property owned by the payor; and,
7. obtaining an order for the payor's arrest.

While it is possible to undertake collection or enforcement proceedings 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 on your behalf by FMEP, recipients enrolled with FMEP are required to obtain the permission of the program's director before they can take independent enforcement actions.

More information about enforcing orders can be found in the page ___________ and at the website of the Department of Justice, which includes a helpful overview of support enforcement mechanisms in Canada.

Separation Agreements

Section 148(3) of the Family Law Act allows a party to an agreement, usually a separation agreement, to file the agreement in the Provincial Court or in the Supreme Court. An agreement that is filed in court can be enforced as if it were an order of the court. It is not necessary for a court proceeding to have been started before an agreement can be filed in court.

FMEP will enforce agreements for support, however they require that an original copy of the agreement be filed in court and sent to them with the court's stamp before they can enforce the agreement.

More information about enforcing agreements can be found in the chapter _____________ .

Orders Made Outside British Columbia

Section 20 of the Divorce Act says that an order made in a divorce action has legal effect throughout Canada. It also provides that such an order may be filed in the courts of any province and be enforced as if it were an order of the courts of that province. In other words, if your divorce order was made in Alberta and contains a term requiring child support to be paid, you can register that order in the Supreme Court of British Columbia and it will have the same effect and be enforceable here as if it were an order of the courts of British Columbia.

The provincial Interjurisdictional Support Orders Act allows orders for child support made under provincial laws elsewhere in Canada, and in certain foreign states, to be filed in our courts and enforced as if they were British Columbia orders. The reciprocating states under the Interjurisdictional Support Orders Act are South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies.

Foreign orders which are filed in this province may be enforced by FMEP as if they were orders made by the courts of British Columbia. See the chapter ___________ more information.

Further Reading in this Chapter

• bulleted list of other pages in this chapter, linked

Page Resources and Links

Legislation

• bulleted list of linked legislation referred to in page

FLA, DA, COEA, FMEA, ISOA

Links

• bulleted list of linked external websites referred to in page
• list of related public resources

DoJ website on collecting support, FMEP, Themis/Maximus