Vancouver Varying Cancelling Child Support lawyers handle cases where people wish to increase or decrease child support or to even cancel child support arrears. Our top rated* Vancouver Varying Cancelling Child Support lawyers help you understand the rules and focus your evidence and arguments so you can succeed in resolving the issue. We have 5 Vancouver Varying Cancelling Child Support lawyer offices across BC and in Calgary Alberta. Toll free line 1-877-602-9900.
How Does Vancouver Varying Cancelling Child Support Work?
Are you a parent seeking to vary a child support order or reduce or cancel arrears in child support that are currently owed? Or is your former spouse seeking to do the same? If so, the Court of Appeal recently released a key case explaining the law on this issue.
The case of K.P.B. v. A.S.R. 2016 BCCA 382 provides a useful summary of the relevant legislation and case law that applies in such instances.
The Vancouver varying cancelling child support lawyers at MacLean Law will help you develop a successful case strategy to deal with what the right amount of child support should be paid.
Vancouver Varying Cancelling Child Support Lawyers Help Guide You
K.P.B. v. A.S.R. was an appeal by the father from an order dismissing his application to vary child support obligations and refusing his application to cancel child support arrears. Parties had three children, ages 11, 9 and 7, who resided primarily with the mother. The father was a chemist and in May 2011, the father was ordered to pay interim child support based on his guideline income of $67,000. He had not worked since October 2011. In 2014, a trial judge imputed income to the father and ordered him to pay child support and a portion of the children’s extraordinary expenses.
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In August 2015, the father brought an application to vary the child support order and to cancel or reduce the arrears. He claimed that he had made extensive unsuccessful efforts to find employment and had no ability to pay child support until he found employment. The father submitted affidavit evidence of his attempts to secure employment, but such evidence was deficient – the affidavit included multiple pro-forma letters with no recipient addresses, various website URLs and a computer print-out itemizing his attendance at seven courses.
The judge who heard the variation application found that there was no change of circumstances from the trial judgment and refused to vary the trial order. He held that it would not be grossly unfair not to reduce or cancel the arrears. The father had not provided satisfactory evidence as to why he was not able to obtain further employment.
The father appealed the decision of the judge who heard the judge who heard the variation application on the basis that judge erred in not finding a material change in circumstances and erred in concluding that the child support arrears were not grossly unjust.
Here Is The Law On Vancouver Varying Cancelling Child Support
The relevant legislation was reviewed by the court at paragraphs 16 to 18:
16 The applicable legislation is the Family Law Act, S.B.C. 2011, c. 25, ss. 152 and 174 [FLA].
17 Section 152 of the FLA governs an application to vary child support. That section provides:
Changing, suspending or terminating orders respecting child support
152 (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.
(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:
(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;
(b) evidence of a substantial nature that was not available during the previous hearing has become available;
(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.
18 Section 174 of the FLA governs an application to reduce or cancel child support arrears. That section provides:
Reducing or cancelling arrears
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.
(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.
BC Appeal Court Decides Vancouver Varying Canceling Child Support Case Against Father
In deciding whether the father’s appeal of his variation application would succeed, the court of appeal stated the following:
20 In determining whether the conditions for variation exist, the onus is on the applicant to establish a change of circumstance since the making of the prior order: L.M.P. v. L.S., 2011 SCC 64 at paras. 31-33. In this case, the trial judge imputed income to Mr. R. To impute income to Mr. R., the trial judge only needed to determine the income Mr. R. was capable of earning, it was not necessary to find that he was intentionally unemployed: Beissner v. Matheusik, 2015 BCCA 308 at para. 44.
25 In making the finding that there had been no change in circumstances, the chambers judge referred to the trial judgment and his findings therein, and considered Mr. R.’s new affidavit evidence. At trial, Steeves J. made adverse findings about Mr. R.’s credibility. At the Variation Application, Steeves J. considered Mr. R.’s evidence but found it insufficient to establish that he was reasonably unemployed. The sufficiency of evidence is a question of fact. In my view, given the kind of evidence tendered, and the deference owed in these cases, it was open to the chambers judge to find that a change in circumstances was not made out. I would dismiss this ground of appeal.
In deciding whether the father’s appeal of his application to cancel or reduce arrears would succeed, the court of appeal stated the following:
26 Mr. R. also applied to reduce or cancel the arrears of child support. First, I note that Steeves J. was alive to the parties’ circumstances: at trial he cancelled the interim child support arrears and phased the imputation of income. That said, it must be noted that Mr. R. at the time of the Variation Application had voluntarily paid none of the child support ordered by the trial judge. In his financial statement sworn in April 2015, Mr. R. listed savings of $69,775 and other financial assets in two 401K plans totalling $331,264. Mr. R. evidently had the means to pay child support. I observe that both parents have an obligation to support their children but in this case, for many years, only Ms. B. financially supported the children.
28 In general, arrears will only be cancelled if the applicant shows he is unable to pay now and in the future: MacCarthy v. MacCarthy, 2015 BCCA 496 at para. 54. Section 174 of the FLA only provides for a cancellation of arrears where it would be “grossly unfair” not to do so. It is evident the chambers judge applied the correct legal test (see para. 7) and was alive to the considerations in s. 172(2); he found Mr. R. had not met the test for cancelling arrears.
29 In my opinion, the evidence adduced on the application simply does not support a finding that it would be grossly unfair not to cancel the arrears. ….
In closing, the Court of Appeal also commented on the Court’s discretion to hear or dismiss an appeal, based on the policy of the court to protect the administration of justice, and how such discretion related to an appeal of a child support order:
37 … this court has held that it may refuse to hear or dismiss an appeal, based on the policy of the court to protect the administration of justice. The Court should not assist a party who has exhibited distain for the judicial process; i.e., in general, one who fails to respect the jurisdiction of the Court should not be permitted to seek its indulgence: Larkin v. Glase, 2009 BCCA 321 at paras. 30-37. A person who has not paid a support order must provide a convincing reason why the appeal should be heard, especially when the order appealed is the very order which has not been obeyed: Bullock v. Bullock, 2008 BCCA 162 at paras. 2-7; Berry v. Berry, 2002 BCCA 129 at paras. 1-4; Hokhold v. Gerbrandt, 2015 BCCA 268 at paras. 10-13. Those observations would apply here.
In the end the father’s appeal was dismissed.
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