Child Support Arrears in BC: Reducing, Cancelling or Collecting Back Payments

Child support arrears build quietly. A job loss, an illness or a dispute about parenting time, and months of missed payments can become a debt of thousands of dollars. On the other side, a parent who is owed support may be struggling to cover a child's costs while waiting.

BC law treats both situations seriously. This guide explains the legal test for reducing or cancelling arrears, why timing matters so much, and the enforcement tools available to a parent who is owed support.

Arrears are a debt until a court changes them

A child support order, or a written agreement filed with the court, sets an amount that must be paid until it is changed. If the payor's income drops, the amount does not drop with it. Every missed payment adds to the arrears, and informal arrangements between parents ("just pay what you can for now") do not change the legal amount owing.

Arrears can also attract interest. Under section 11.1 of the Family Maintenance Enforcement Act, a payor must pay simple interest on arrears of maintenance, calculated as set out in the regulations.

Two different questions: the future and the past

When support has become unaffordable, there are usually two separate issues.

Changing support going forward. Under section 152 of the Family Law Act, a court may change, suspend or end a child support order, prospectively or retroactively. It must first be satisfied that there has been a change in circumstances as described in the child support guidelines, that substantial new evidence has become available, or that a lack of financial disclosure has come to light since the last order. If the order was made under the federal Divorce Act, section 17 of that Act gives the court a similar power, again based on a change of circumstances under the guidelines. Our article on changing a child support order after an income change covers this step.

Dealing with arrears that have already built up. A change made only from today leaves existing arrears in place. Reducing or cancelling those requires a separate request, or a retroactive change, with its own test.

The test for reducing or cancelling arrears

Section 174 of the Family Law Act allows a court to reduce or cancel arrears owing under an agreement or order for child support or spousal support, but only if it is satisfied that it would be grossly unfair not to do so. That is a high bar. In deciding, the court may consider:

• Your efforts to comply. Whether you paid what you could, kept the other parent informed, and acted when things changed.
• Why you cannot pay. For example, a serious illness, disability or long-term loss of income, supported by records.
• Any other relevant circumstances. The court is not limited to a fixed list.

If the court reduces arrears, it may also order that interest does not accrue on the reduced amount, and if it cancels arrears, it may cancel interest that has built up on them, in each case only if it would be grossly unfair not to.

Because the court may look at your efforts to comply, a payor who simply stopped paying and waited is likely to be in a weaker position than one who applied promptly when income fell.

If you are the payor: practical steps

• Apply early. If your income has dropped, apply to change support as soon as possible rather than letting arrears grow.
• Keep paying something. Partial payments show good faith and reduce the debt.
• Gather proof. Tax returns, notices of assessment, termination letters, medical records and job search records all help explain what happened.
• Do not ignore enforcement. If your file is with the Family Maintenance Enforcement Program, respond to its letters. Enforcement steps do not pause just because you disagree with the amount.

If you are owed support: collecting arrears

Many parents collect through the Family Maintenance Enforcement Program (FMEP), run by the Director of Maintenance Enforcement. Under section 3 of the Family Maintenance Enforcement Act, either parent may file a BC support order with the Director. A written support agreement filed with the court is enforceable as if it were an order, under section 148 of the Family Law Act. Once a file is open, the Director can enforce it, including arrears that built up before filing (section 4). While the order is filed, only the Director may enforce it unless the Director authorizes you in writing (section 5).

The Act gives the Director a range of tools, including:

• Attachment. A notice of attachment can capture money owed to the payor, such as wages or other payments (section 15).
• Land title registration. A notice of the maintenance order can be registered against the payor's land (section 26).
• Driver's licence and plates. Where arrears total $3,000 or more, the Director can take steps through ICBC affecting the payor's driver's licence and vehicle licences, after giving the payor notice (section 29.1).
• Default fees and hearings. The Director can give notice of an annual default fee (section 14.4) and apply for a summons requiring the payor to attend a default hearing and show cause why the order should not be enforced (section 19).

If you are owed arrears and your order is not filed, consider filing it. Enforcing support privately can be slower and harder.

Common mistakes on both sides

• Relying on a verbal deal. An informal agreement to pay less may not protect you. Get it properly documented and, ideally, filed or turned into an order.
• Letting parenting disputes affect payment. Child support and parenting time are separate. Withholding one because of the other usually makes things worse; our article on parenting time being withheld explains the right route.
• Waiting. For payors, delay makes relief less likely. For recipients, delay can make the money harder to find.

Dealing with child support arrears? Get advice on the right application

Our family lawyers can review your order or agreement and payment history, advise whether an application to change support or deal with arrears makes sense, and help with enforcement or a response to enforcement.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.