I disagree with the current and proposed Family Relations Act child or spousal payment arrears (unpaid support) test that establishes there will be no cancellation of support arrears unless it would be “grossly unfair” not to do so. The Act arguably treats common law and married couples differently and applies a one-sided and unfair test that departs from the proper application of the Child Support Guidelines and Spousal Support Advisory Guidelines.
If the income used to set the amount was wrong, or the paying spouse’s income truly declined through no fault of the payor then the arrears should be corrected applying the two guidelines fairly. Changes to our Family Relations Act are needed but under the White Paper of family Relations Act reform no change to this draconian test is proposed.
At present the Child Support Guidelines are applied in virtually every case by analyzing the paying spouses income and mandating a set payment if a payor’s income goes up annually the support goes up and if the paying spouse applies to lower the payment because of a bona fide decrease in income the payment will likely decrease. The Spousal Support Guidelines use the same income test and these guidelines are also routinely applied. The problem arises for paying spouse’s who lose their jobs or suffer huge income cutbacks and who then cannot hire a lawyer to promptly come back to court to correct the problem. “Phantom” support arrears unavoidably build up and when the situation reaches a crisis point where enforcement action is taken -such as seizure and sale of assets, denial of passport and driver’s license renewal or garnishment of the payor’s wages -the payor is faced with a test that is far different than simply applying the Child Support and Spousal Support Advisory Guidelines.
The White Paper on Family Relations Act reform states “The policy question in relation to the cancellation or reduction of arrears of spousal support is whether these are to be characterized as a retroactive variation and analyzed in a similar way to other variation applications or whether they should continue to be subject to a tougher standard: the current Act says that arrears may be cancelled or reduced only if it would be “grossly unfair” not to do so.”
The new proposed section which perpetuates what I say to be an injustice that treats innocent paying spouses who are in arrears because it applies a different test to that facing paying spouses on initial applications and those who promptly apply to reduce support, reads as follows:
Reducing or cancelling arrears
141 (1) The court may, on application reduce or cancel arrears under a support order if satisfied that it would be grossly unfair not to do so.
(2) For the purposes of this section, the court may take into consideration
(a) the efforts the person having the support obligation has made to comply with the support order,
(b) the explanation of the person having the support obligation for any delay in applying for an order to vary, suspend or terminate the support order, and
(c) any special circumstances that the court considers relevant.
(3) If the court reduces arrears under a support order, the court may order that interest does not accrue on the reduced amount of arrears if the court is satisfied it would be grossly unfair not to make that order.
(4) If the court cancels arrears under a support order, the court may cancel interest that has accrued on the arrears under section 11.1 of the Family Maintenance Enforcement Act if the court is satisfied it would be grossly unfair not to make that order.
Read the Earle decision test that shows how hard it is to cancel arrears. HIRE A LAWYER IMMEDIATELY IF YOUR INCOME CHANGES FOR THE WORSE!
To be clear, I say the test is unfair to those support paying spouses who cannot pay support at the original court ordered level not those who simply refuse to pay and persist in ignoring their court ordered obligations.
If you have an issue with support arrears call me, Lorne MacLean at any of our three offices or toll free at 1 877 602 9900.
