How Do I Cancel Vancouver Support Arrears? Our top-rated* Vancouver family lawyers get asked this question a lot. In today’s modern economy people lose their jobs, their company’s profits take a hit, they may be injured at work or in a car crash or they may even be unable to work because of drug or alcohol dependency. Some people even get so mad on separation they work less hard to earn less in an attempt to pay less support. One thing is clear- if you suffer a financial setback, any delay in correcting the support can be fatal financially. Don’t let things become more of a mess by procrastinating.
Vancouver Family Lawyers Explain Income Attribution
The recent case of Kular v. Kular dealt with a husband who had not worked for 5 years due to alcohol and drug dependency. He sought to cancel or reduce support arrears on this basis and his ex-spouse sought to have income attributed to him. Attribution of income is what occurs when a court feels someone’s actual income ability exceeds what they are currently earning. Attribution of income under the Divorce Act, FLA and section 19 of the Child Support Guidelines can occur to both paying and receiving spouses. The court will look at the person’s education, work history, and skill set to determine the “real income” they could earn.
The Test
Fraser MacLean, a rising star articled student, works with founder Lorne N MacLean, QC on child and spousal support cases. In today’s blog, Fraser MacLean explains the law from the Kular v. Kular decision. Madam Justice Choi explained the settled law as follows:
[15] Given that much of the October 2007 order was made under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 [Divorce Act], s. 17 is the operative section that provides this Court with authority to vary, rescind or suspend orders.
[16] While the Divorce Act does not address cancellation of arrears owing under an order, the Family Law Act, S.B.C. 2011, c. 25 [FLA]does so in s. 174. I agree with Mr. Virk that the legal principles found in the case law on s. 17 of the Divorce Act and s. 174 of the FLA, however, are largely the same.
[17] Section 174 of the FLA allows the court to reduce or cancel arrears owing under an order for child support if the court is satisfied that it would be grossly unfair not to reduce or cancel the arrears. The court may consider the efforts of the person responsible for paying support to comply with the order, the reasons why the payor cannot pay the arrears owing, and any circumstances the court considers relevant.
The Law
[18] Counsel for Ms. Kular submitted a number of useful authorities for the matter at hand.
[19] The leading case of Earle v. Earle, 1999 BCSC 283, 86 A.C.W.S. (3d) 764, a decision of Madam Justice Martinson, outlines the principles for the cancellation or reduction of arrears. The decision sets out that the payor has a heavy onus and that a judge must be confident that the evidence is reliable, accurate and complete (para. 28). The applicant cannot rely on hearsay evidence.
[20] Other cases have followed Earle. In the case of Beavis v. Beavis, 2014 BCSC 422, Madam Justice Fenlon indicated at para. 15 that there are two elements to the test, being gross unfairness and change in circumstances. Financial disclosure and obligation to earn capacity relate to the change in circumstance in assessing whether the applicant has proven a significant and long lasting change in circumstances due to a reduction in income.
[21] InLuney v. Luney, 2007 BCCA 567, the Court of Appeal held that the test for reduction or cancellation of arrears is onerous and that the test is not easy to meet. This is because parents have a duty to support their children. Therefore, cases in which arrears are reduced or cancelled are rare (para. 43).
[22] With respect to imputing income, s. 19 of the Guidelines is the operative section. Mr. Kirk cited Hanson v. Hanson, [2000] B.C.W.L.D. 234 (S.C.) and Baldini v. Baldini (1999), 46 R.F.L. (4th) 407 (B.C.S.C.), which are also both decisions of Madam Justice Martinson. Mr. Kirk also cited a Manitoba Court of Appeal case, Donovan v. Donovan, 2000 MBCA 80, and Taylor v. Taylor, 2010 BCSC 1539.
[29] I agree that Mr. Kular has not provided enough evidence otherwise to demonstrate that he cannot work at all. Being designated a person who qualifies for disability benefits does not mean he cannot work for the purpose of paying child support. I agree that his doctor’s notes are inadmissible hearsay and do not amount to expert evidence (Taylor at para. 33). I agree with the comments of Mr. Justice Greyell in Taylor at para. 34, that medical notes such as the one provided “are often made, at the request of a patient to a busy medical practitioner, for a purpose directed by the patient” and, in that sense, are often “self-serving self-reports”. However, I also accept that Mr. Kular is suffering from one or more illnesses. Whether this renders him totally disabled from working is another question.
In the end, the judge imputed an income of $20,000 including his disability income and dismissed the application to cancel arrears although support was reduced moving forward.
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