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Difference between revisions of "Spousal Support Arrears"
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→Retroactive reduction of support
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<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> | <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 167 of the ''Family Law Act'' says this: | |||
<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</tt></blockquote></blockquote> | |||
Retroactive variation applications are relatively new. In 2006, the Supreme Court of Canada established rules for applying for retroactive child support, or for a retroactive increase in child support. This is the case of ''D.B.S. v S.R.G.'' discussed in the chapter, Making Changes to Child Support. In the recent case of ''G.M.W. v D.P.W.'' 2014 BCCA 282, our Court of Appeal said these principles also apply to applications for a retroactive reduction of support. Both involve child support, but the rules will be similar for spousal support. Among other things, the court must consider: | |||
#the circumstances surrounding the delay in bringing the application; and | |||
#any hardship caused by making or not making the order, to either party. | |||
Delay might be explained if the other party promised not to rely on the full amount, or if the payor was temporary incapacitated, or was unable to get appropriate information or advice. But the delay will have to be explained somehow. The courts will not be sympathetic to someone who just chose to let it slide. | |||
Hardship is a two-way street. The court has to consider the position of both the payor and the recipient. If the recipient relied on the order or agreement and went into debt in the expectation that the arrears would eventually be paid, that weighs against granting relief. If, on the other hand, it was clear to both parties that the order or agreement was unreasonable in light of current circumstances, that weighs in favour of granting relief. A retroactive reduction will be very unlikely if it would require the recipient to pay back money already received and spent. | |||
Remember, though, that a retroactive variation application can only adjust the arrears to what they should have been, had the order or agreement been adjusted for current circumstances in a timely manner. If arrears would still have accrued, it does not allow any relief beyond that. | |||
===Arrears under the ''Family Law Act''=== | ===Arrears under the ''Family Law Act''=== | ||
