Vancouver Calgary Vary Cancel Support Arrears lawyers deal with applications to reduce or terminate spousal and child support. There are two key elements for a Court to take action to reduce or cancel spousal or child support arrears. Firstly, there must be a material change in circumstances; and secondly, the Court needs to be persuaded that it would be grossly unfair not to reduce or cancel the child or spousal support arrears. MacLean Law’s Vancouver Calgary Vary Cancel Support Arrears lawyers can help explain the test for changing spousal and child support orders that exist.
Our top rated* family lawyers will also tell you what the onus to succeed on an application to reduce or cancel support is. Contact our founder Lorne N MacLean, QC in Vancouver or senior Calgary family lawyer Peter Graburn.
Delay in applying to vary arrears can be fatal as you will read below, so pick up the phone and call us toll free across Canada at 1-877-602-9900 if you have a Vancouver Calgary Vary Cancel Support Arrears issue.
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In the BC Supreme Court decision of Podovinikoff v. Podovinikoff 2017 BCSC 2205 the principles that apply to a Court application to reduce support and cancel support arrears were clearly summarized by Supreme Court Justice Funt:
[11] Justice S.R. Romilly in Holmstrom v. Holmstrom, 2014 BCSC 545 provided a comprehensive summary of the applicable principles for varying past child support. There are two key elements: first, there must be a material change in circumstances; and second, it would be grossly unfair not to reduce or cancel the arrears. In the case at bar, other than with respect to the mother’s two proposed adjustments, the material change in circumstances element has not been satisfied. Accordingly, I will not address the “grossly unfair” element in these reasons.
[12] Below I have reproduced Justice S.R. Romilly’s summary of the test as to what constitutes a “material change in circumstances”:
[35] The test for cancelling or reducing child support arrears was cited by Madam Justice Fenlon in her recent decision in Beavis v. Beavis, 2014 BCSC 422 (released March 13, 2014). Although it could not have been referred to by counsel in this proceeding, the principles contained therein were adequately canvassed and addressed by both parties. Sitting on an appeal from a Provincial Court judgment, Fenlon J. succinctly summarized the applicable law:
[14] … In Semancik v. Saunders, 2011 BCCA 264 at para. 25, the Court of Appeal states that when applying for the cancellation or reduction of child support arrears:
[25] … The applicant must prove a material (… defined as a “significant and long lasting”) change in circumstances and that it would be grossly unfair not to cancel the arrears.
[Emphasis in original.]
[15] Grounds A (Gross Unfairness) and B (Change in Circumstances) relate to the two main elements of this test. Grounds C (Financial Disclosure) and D (Obligation to Earn to Capacity) fall within ground B: they are two factors to consider when assessing whether the applicant has proven a significant and long-lasting change in circumstances due to a reduction in income. Accordingly, I address the four grounds of appeal within the structure of this two-part test.
[36] In other words, there are two criteria for determining whether a cancellation or reduction of child support arrears is appropriate: (1) a material change in circumstances; and (2) that it would be grossly unfair not to reduce or cancel the arrears.
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[37] In P.L. v. J.D.L., 2013 BCSC 1492, Fleming J. reviewed some of the principles that should be applied on an application for the reduction or cancellation of child support arrears. She wrote, in relevant part:
[21] The legal principles applicable to any application regarding child support and cancellation or reduction of child support arrears were discussed by Madam Justice Martinson in Earle v. Earle, 1999 BCSC 283 (“Earle“). With respect to child support generally, those principles are: parents have a joint and ongoing legal obligation to support their children; it is the child, not the parent, who has the right to support; and the payment of child support is based on the ability of the parent to pay, not only what the parent earns. The result of this last principle is that parents have a legal obligation to earn as much as they are reasonably capable of earning to meet their obligation to support their children (Earle and G.(S.) v. W.(G.), 2006 BCSC 991).
[22] With respect to variation applications, the applicant must establish a material change of circumstances since the original order was made. The change must be significant and long lasting. A change to the Guidelines amount is not automatic: Earle.
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[23] The cancellation or reduction of arrears is a form of variation. Madam Justice Martinson in Earle found the test under the Family Relations Act, R.S.B.C. 1996, c. 128, which required that arrears not be reduced or cancelled unless it would be grossly unfair not to do so, is similar to the one to be applied under the Divorce Act. The “grossly unfair test” has been found appropriate for consideration on a variation application under the Divorce Act: S.A.R. v. L.G.R., 2011 BCSC 712, at para. 45; and Lewis v. Lewis,[1999] B.C.J. 2537 (S.C.), at para. 16.
[38] In Earle v. Earle, 1999 BCSC 283 at paras. 25-43, Madam Justice Martinson clarified the criteria for a cancellation or reduction of arrears. In relation to a change in financial circumstances, she said:
[25] I will now consider a number of specific arguments that are often made to the courts on applications to cancel or reduce arrears and give the legal rules that apply to those arguments.
a. “I cannot afford to pay now”
[26] Not being able to pay now is not a valid legal reason to cancel or reduce arrears. They will only be cancelled if the person is unable to pay now and will be unable to pay in the future.
b. “I could not pay when I was supposed to because my financial circumstances changed”.
[27] People making this argument have a heavy onus. It is not good enough just to say that they could not pay because they earned less. They can only get a reduction or a cancellation of arrears if they present detailed and full financial disclosure, under oath (usually in the form of an affidavit) that:
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.
[Emphasis in original.]
…
[43] A trial judge can assess the appropriate magnitude of any reduction in arrears by considering the difference between the income on which the order or agreement is based and the payor’s actual income during the same period. However, it is important to note that recalculating arrears is not appropriate until after it has been determined that a cancellation or reduction of child support arrears has met the two-part test, i.e. a material change in circumstances and that it would be grossly unfair not to cancel or reduce the arrears. This is true even where the court order pursuant to which arrears have accumulated provides for a review of the parties’ respective incomes. See: L.B. at para. 42; P.L. at paras. 41–42; and Beavis at paras. 40–45.
[44] The policy underlying this reasoning was laid out by Fleming J. at para. 42 of P.L.:
[42] I note in addition the respondent provided no authority to establish that the court can retroactively calculate child support payments based upon the payor’s line 150 income, and then set the arrears based upon the difference between what was paid and what should have been paid according to the line 150 income. In similar circumstances, the Provincial Court in L.B. v. J.K., 2012 BCPC 231, refused to adopt this approach in part because to do so encourages payors to do nothing in the face of a reduction in income and disobey a court order over an extended period of time, allowing significant arrears to accumulate. Then, when it suits the payor, he or she may bring an application for an order that deprives the children in question of child support that they were entitled to receive and relied upon receiving (para. 42).
[Emphasis of Romilly J.]
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[13] In D.B.S. v. S.R.G., 2006 SCC 37, Justice Bastarache, writing for the majority, noted an important difference between prospective and retroactive support awards:
[96] Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. Prospective awards serve to define a new and predictable status quo; retroactive awards serve to supplant it.
[14] As may be seen from ss. 17(1) and (4) of the Divorce Act, there must be a change of circumstances since the previous order, in the case at bar, the July 11, 2012 Order. As with varying past child support, the change in circumstances must be a material change even where matters are to be considered prospectively: Bockhold v. Bockhold, 2006 BCCA 472 at para. 34.
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[15] The onus is on the applicant (the father in the case at bar) to show a material change in circumstances to vary either past or future child support: Willick v. Willick, [1994] 3 S.C.R. 670, at 734, Justice Abella concurring.
Key Take Away In Vancouver Calgary Vary Cancel Support Arrears Cases
The take aways from this case are even when you may be in shock from a job loss or collapse of your business you need to take action to correct the support to an amount that is sustainable. On the other hand if you find out your spouse hasn’t paid proper support call us to collect the amount retroactively.
