Child Support Arrears

When a person who is obliged to pay child support fails to pay all of the child support they are required to pay, a debt begins to accumulate. The debt owing is called the payor's arrears of child 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 child support arrears. It also discusses the reduction and cancellation of arrears and how arrears are collected.

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 compelling circumstances.

Someone who owes arrears of child 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 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 child 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, 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. They can also be enforced under the Family Maintenance Enforcement Act, and section 3(1)(l) of the act says that there is no time limit within which child support arrears must be enforced.

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

Agreements for child 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 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.

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.

The Family Maintenance Enforcement Program

Although recipients can enforce agreements and orders for child support on their own, most of the time recipients will give that job to the Family Maintenance Enforcement Program (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.

FMEP is a free service for recipients. Its purpose is to enforce the payment of child support and children's special expenses and extraordinary expenses, although the enforcement of special expenses and extraordinary expenses through FMEP isn't exactly straightforward. You should contact FMEP to ask what they can or cannot do about enforcing agreements and orders about the payment of children's special expenses and extraordinary expenses.

It's important to know that FMEP can't change agreements and orders about child support. While it can make important, judge-like decisions about who is and isn't entitled to receive child support when children are 19 years old or older, FMEP can't increase or decrease the amount of a child support obligation and it can't reduce or cancel arrears of child support.

It's also important to know that payors who want to apply to court to reduce or cancel arrears of child support accumulating under an agreement or order that's been filed with FMEP must serve FMEP, as well as the recipient, with their application. FMEP 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 FMEP 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 child 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 child support obligation and any obligation they may have to contribute to the cost of the children's special expenses and extraordinary expenses. 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.

Arrears under the Divorce Act

If you've read the section in this chapter on Making Changes to Child Support, you know that an application to cancel or reduce arrears is much the same kind of application as an application to change a child support order where the Divorce Act is involved. Like applications to change a child support order, applications to reduce or cancel arrears are made under section 17 of the act.

Section 17 of the Divorce Act says this about varying orders for spousal 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) 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 doesn't talk about arrears specifically. The test the court will apply is similar to the test it applies for orders under the Family Law Act. It is difficult to persuade the court to reduce or cancel arrears, as you'll see in the next section.

Arrears under the Family Law Act

Unlike the Divorce Act, the Family Law Act does talk about arrears, and the test to reduce or cancel arrears of child support is not the same as the test to simply change an agreement or order for child support. Section 174 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, the law before the Family Law 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 section 96(2) of the old act. The courts have taken the same approach to section 174 of the Family Law Act.

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 be prepared to address the criteria set out in section 174(2) of the Family Law Act:

• 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 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 Family Maintenance Enforcement Program. 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.

FMEP 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 child support must be filed in court first.) FMEP 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 FMEP a lot power to collect child 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. FMEP 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 FMEP, recipients enrolled with FMEP 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 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 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, nor is it necessary that the agreement be a British Columbia agreement.

FMEP will enforce agreements for support, however they require that the agreement be filed in court first, 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 particular within the section Enforcing Family Law Agreements.

Orders made outside British Columbia

It's a little harder to enforce orders for child 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 child 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 there were an order of the courts of that province. In other words, if your divorce order was made in New Brunswick and contains a term requiring that child 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 courts of British Columbia.

Child 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 child 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 child support orders.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Court Order Enforcement Act
• Family Maintenance Enforcement Act
• Supreme Court Family Rules
• Provincial Court Family Rules
• Interjurisdictional Support Orders Act
• Interjurisdictional Support Orders Regulation
• Child Support Guidelines

Links

• Ministry of Attorney General Interjurisdictional Support Services (BC reciprocals office)
• Legal Aid BC's Family Law website's information page "Court orders"
  • See "Change an order or set aside an agreement made in BC"
• Family Maintenance Enforcement Program website
• Clicklaw HelpMap: Family Maintenance Enforcement Program details
• Department of Justice's website "About support enforcement"

Last reviewed for legal accuracy by JP Boyd, 28 June 2022.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.