The amount of child support that a parent must pay to the other parent depends on many factors, including the number of children for whom support is to be paid, the parenting arrangements for the child or children, as well as each parent’s income.
The Child Support Guidelines, established by the Federal Government, provides a list of considerations for how such support will be calculated, including Tables that set out the amount of child support to be paid depending on the number of children and the income of the parent responsible for paying support.
A parent’s obligation to pay child support can be recorded in a written agreement between the parents or in a court order.
When a person who is obligated to pay support fails to meet some or all or the support obligation, a debt begins to accumulate. The amount owing for unpaid child support is called “arrears.”
Arrears of child support often accumulate because the parent who is required to pay a certain amount of this support has experienced a reduction in income, and that parent is no longer able to pay the amount of support that he or she once did. Parents can experience a change in income for a variety of reasons, including job loss or health issues.
If you are required to pay child support, and have experienced a reduction in income, we encourage you to talk to an experienced Victoria family law lawyer who can assist you in negotiating a reduction.
Unfortunately, many parents who experience a reduction in income fail to address this changed circumstance in a timely way, and arrears of child support begin to accumulate. In many cases, a parent who has fallen into arrears of child support can end up owing thousands or even tens of thousands of dollars, and often in situations where the reduction in income was beyond that parent’s control.
All of the lawyers at Brown Henderson Melbye have experience assisting parents who have accumulated arrears of child support. We have negotiated resolutions, including a reduction or cancellation of arrears of child support, as well as a lower ongoing support amount.
Where negotiations fail, all of the lawyers at Brown Henderson Melbye are able to advise and represent clients on seeking the assistance of the court in reducing or cancelling arrears of child support.
Section 174 of the Family Law Act provides a legal test that the court will consider on a parent’s application to reduce or cancel arrears of child support:
174 (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.
The basic principles of cancellation of arrears of child support are set out in British Columbia Supreme Court decision Earle v Earle, [1999] BCJ No. 383 (BCSC), at para 46, which remains the leading case.
[46] These basic principles can be summarized this way:
1. Maintenance Generally
a. Parents have a joint and ongoing legal obligation to support their children.
b. It is the child, not the other parent, who has the right to maintenance.
c. The payment of maintenance is based on not just what a parent does earn but what a parent can earn.
2. Variation
a. There has to be a material change of circumstances, a change that is significant and long lasting.
b. A change to the Guideline amount is not automatic.
3. Arrears
Basic Principles
a. 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.
b. If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid right away.
Examples
a. Arrears will only be cancelled if the person is unable to pay now and will be unable to pay in the future.
b. A reduction or a cancellation requires detailed and full financial disclosure, under oath (usually in the form of an affidavit) that at the time the payments were to be made:
i. the change was significant and long lasting and
ii. the change was real and not one of choice and
iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful.
c. Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family.
d. Delay in enforcement is generally not a legal basis to cancel or reduce arrears.
e. Judges will not cancel arrears because the other party gets a lot of money at once. Otherwise, people would be encouraged to not pay maintenance and rewarded for not paying maintenance.
f. Judges will not cancel arrears because the children were looked after in spite of the non-payment.
g. Nor will judges cancel arrears because the children no longer need the money. The children should be compensated for what they missed.
h. An agreement between parents that the maintenance for the children does not have to be paid will not be considered.
i. Lack of access between a parent and child is not a legal reason to reduce or cancel arrears.
j. Judges will not reduce or cancel arrears because other money has been spent to buy things for the children.
k. The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears.
Earle v. Earle continues to be applied as the leading case on reducing or cancelling arrears of child support, including by the BC Court of Appeal in McCarthy v McCarthy, 2015 BCCA 496.
The test to cancel arrears of child support is onerous; however, in exceptional circumstances courts have exercised their discretion to cancel arrears where it would be grossly unfair not to do so, or when the payor has an inability to pay now and in the future.
Where a child support obligation has been registered with the Family Maintenance Enforcement Program (“FMEP”), and arrears of child support have accumulated, interest, fines and other fees related to arrears may also be payable to FMEP.
If a parent is successful in having his or her arrears cancelled by the court, the interest owing on the arrears, as well as other fines and fees, can also be cancelled by the court.
Section 174(4) of the Family Law Act provides that
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.
Section 14.4(6) of the Family Maintenance Enforcement Act, provides that in a proceeding in which a court reduces or cancels the arrears under a maintenance order that is filed with the director, the court may order that the annual default fee payable to FMEP is also cancelled.
If you have accumulated arrears of child support, we encourage you to talk to an experienced Victoria family law lawyer who can assist you in navigating your options for reducing or cancelling arrears of spousal support.
