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Difference between revisions of "Spousal Support Arrears"
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|ChapterEditors = [[David Dundee]] and [[Gillian Oliver]] | |ChapterEditors = [[David Dundee]] and [[Gillian Oliver]] | ||
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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. | 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. | ||
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<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 ''[ | Since orders for support require the payment of money, arrears can also be enforced as a "judgment debt" under the provincial ''[https://canlii.ca/t/84h5 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. | 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. | ||
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===The Family Maintenance Enforcement Program=== | ===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 [https://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 ''[ | Although recipients can enforce orders and agreements for spousal support on their own, most of the time recipients will give that job to the [https://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 ''[https://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. | ||
BCFMA is a free service for recipients. Its purpose is to enforce the payment of spousal support. | BCFMA is a free service for recipients. Its purpose is to enforce the payment of spousal support. | ||
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<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> | <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> | ||
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 [ | 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 [https://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 [https://canlii.ca/t/27qrq P.M B. v. M.L.B.]: | ||
<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><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> | ||
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<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) a support order or any provision thereof on application by either or both former spouses;</tt></blockquote></blockquote> | ||
Applications to reduce or cancel arrears of spousal support under the ''Divorce Act'' aren't often pursued, but do happen. [ | Applications to reduce or cancel arrears of spousal support under the ''Divorce Act'' aren't often pursued, but do happen. [https://canlii.ca/t/1p6l3 Haisman v. Haisman], a 1994 decision of the Alberta Court of Appeal, and [https://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 ''[[Family Law Act]]'' does talk about arrears. Section 174 says this: | The ''[[Family Law Act]]'' does talk about arrears. Section 174 says this: | ||
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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> | ||
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 [ | 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 [https://canlii.ca/t/gmc40 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 [https://canlii.ca/t/1d20m Earle v. Earle], in which the court said this: | 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: | ||
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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. | 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 ''[ | 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 ''[https://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. | ||
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: | 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: | ||
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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. | 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 | You can find more information at the website of the [https://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. | ||
===Separation agreements=== | ===Separation agreements=== | ||
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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. | 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. | ||
===Orders made outside British Columbia=== | ===Orders made outside British Columbia=== | ||
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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. | 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 ''[ | 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 ''[https://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 [https://www.isoforms.bc.ca Interjurisdictional Support Services (IJSS) office]. The IJSS office, which is BC's reciprocals office, then files the order in court, and, once filed the order has the same effect as an order of the courts of British Columbia. | ||
====Orders made outside of Canada==== | ====Orders made outside of Canada==== | ||
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* Asia — Hong Kong, Republic of Singapore | * Asia — Hong Kong, Republic of Singapore | ||
See the [ | See the [https://canlii.ca/t/84vn 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. | 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. | ||
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* [https://www.bcfma.ca BC Family Maintenance Agency website] (formerly FMEP) | * [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.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] | ||