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Difference between revisions of "Child Support Arrears"
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Child Support Arrears (view source)
Revision as of 19:28, 29 December 2016
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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 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 | 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 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 <span class="noglossary">access</span> to some very powerful and effective enforcement tools to collect outstanding arrears of support. | 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 <span class="noglossary">access</span> to some very powerful and effective enforcement tools to collect outstanding arrears of support. | ||
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Unfortunately for people who would rather be jailed than pay, s. 231(3)(c) says that: | Unfortunately for people who would rather be jailed than pay, s. 231(3)(c) says that: | ||
<blockquote><tt>imprisonment of a person under this section does not discharge any duties of the person owing under an order</tt></blockquote> | <blockquote><tt>imprisonment of a person under this section does not discharge any duties of the person owing under an order.</tt></blockquote> | ||
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]'' | 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]'' and the Family Maintenance Enforcement Act. By s. 3(1)(l) of the Act, there is no limitation period for enforcement of child support arrears. | ||
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 | 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=== | ===Agreements for support=== | ||
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<blockquote><tt>A written agreement respecting child support that is filed in the court is enforceable under this Act and the ''Family Maintenance Enforcement Act'' as if it were an order of the court.</tt></blockquote> | <blockquote><tt>A written agreement respecting child support that is filed in the court is enforceable under this Act and the ''Family Maintenance Enforcement Act'' as if it were an order of the court.</tt></blockquote> | ||
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. | 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. | ||
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===The Family Maintenance Enforcement Program=== | ===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 [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP). This a provincial government program under the provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' which has been contracted out to an American company, Maximus (Themis) | Although recipients can enforce orders and agreements for child support on their own, most of the time recipients will give that job to the [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP). This a provincial government program under the provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' which has been contracted out to an American company, Maximus (Themis). | ||
FMEP is a free service for recipients | FMEP is a free service for recipients whose purpose is to enforce child support and s. 7 expenses. | ||
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. If you are a payor who wishes to apply to court to reduce or cancel child support arrears, and the FMEP is involved in your case, you | 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. If you are a payor who wishes to apply to court to reduce or cancel child support arrears, and the FMEP is involved in your case, you must serve FMEP as well as the recipient with your application. | ||
==The reduction and cancellation of arrears== | ==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. | Payors may apply to court to have their arrears cancelled or reduced. Technically, this is in some ways an application to retroactively 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''=== | ===Arrears under the ''Divorce Act''=== | ||
An application to cancel or reduce arrears is the same as to vary a child support order under the ''[[Divorce Act]]'' and is done pursuant to section 17. See the section about "Making Changes to Child Support". | |||
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]]''. It is difficult to persuade the court to cancel arrears as you will see in the next section. | |||
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''=== | ===Arrears under the ''Family Law Act''=== | ||
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<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>(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> | ||
A similar section of the old ''Family Relations Act'' was described as a "complete code" regarding the reduction or cancellation of arrears under that | 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 could reduce or cancel arrears was "gross unfairness," as set out in s. 96(2). The courts will probably 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. | 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 | 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, 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? | *What efforts have you made to pay the child support you were required to pay? | ||
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*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 that the court should take into <span class="noglossary">account</span>? | *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 that the court should take into <span class="noglossary">account</span>? | ||
Be prepared to provide to the court a financial statement (Form F8 in the Supreme Court and Form 4 in the Provincial Court) that summarizes all of your assets and income | Be prepared to provide to the court 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. | ||
The leading case that set out the legal principles with respect to cancellation of arrears in British Columbia is Earle v. Earle, 1999 CanLii 6914 (BCSC). | |||
==Collecting arrears of support== | ==Collecting arrears of support== | ||
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| resourcetype = phone contacts for the | | resourcetype = phone contacts for the | ||
| link = [[Family Maintenance Enforcement Program|Family Maintenance <br>Enforcement Program]] | | link = [[Family Maintenance Enforcement Program|Family Maintenance <br>Enforcement Program]] | ||
}}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 who is 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. | }}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 who is entitled to receive support under an order or agreement can sign up with this program and the program will tend to the enforcement of the support or agreement 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 ''[http://canlii.ca/t/840m 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. | 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 ''[http://canlii.ca/t/840m 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. | ||
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#redirecting federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient, | #redirecting federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient, | ||
#prohibiting a payor from renewing his or her driver's licence, | #prohibiting a payor from renewing his or her driver's licence, | ||
#directing the | #directing the federal government to refuse to issue a new passport or suspend current passport, | ||
#registering a lien against personal property and real property owned by the payor, and | #registering a lien against personal property and real property owned by the payor, and | ||
#obtaining an order for the payor's arrest. | #obtaining an order for the payor's arrest. | ||
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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. | 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. | ||
See also the section about Getting an Order Outside British Columbia and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. | |||
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. | 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. | ||
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* ''[[Family Law Act]]'' | * ''[[Family Law Act]]'' | ||
* ''[[Divorce Act]]'' | * ''[[Divorce Act]]'' | ||
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act | * ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' | ||
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' | * ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' | ||
* [http://canlii.ca/t/8mcr Supreme Court Family Rules] | * [http://canlii.ca/t/8mcr Supreme Court Family Rules] | ||
