Can Child Support Arrears Be Reduced or Cancelled in BC?

Falling behind on child support can happen quickly after a job loss, an illness or a drop in income. Once the unpaid amount grows, many payors ask whether it can be lowered or wiped out.

The short answer is that it sometimes can, but not by simply deciding to stop paying. This article explains how arrears work in British Columbia, what a court can and cannot do, and why the timing of your application can make a real difference.

This article covers the law of British Columbia.

Why you cannot just stop paying

Every parent and guardian has a duty to provide support for a child. When there is a support order, that obligation continues until a court changes, suspends or terminates the order under section 152 of the Family Law Act, and the payor cannot end it by their own decision.

This means that if your income drops and you simply pay less, or nothing, the original amount generally keeps building up as arrears. The order stays in place until a court says otherwise.

What arrears are and how interest works

Arrears are the unpaid support that was due under the order. Arrears owed under a maintenance order bear simple interest at the rate set by regulation. Because interest keeps running, waiting usually makes the total larger.

The court also cannot reduce or cancel arrears except as the Family Maintenance Enforcement Act allows. That is why the route you take matters.

How a court can change the order, and what that means for arrears

Under section 152 of the Family Law Act, a court can change, suspend or terminate a child support order, going forward or retroactively, on application, if a change in circumstances as provided for in the child support guidelines has occurred since the order was made.

There are two other routes. A child support order can also be changed on substantial new evidence that was unavailable at the previous hearing, or where evidence of non-disclosure is discovered later, even without a guideline change in circumstances.

The important point is that changing the order and reducing the arrears are separate questions. On a variation, the court may vary an order without reducing or cancelling the aggregate of the arrears. However, the court may reduce or cancel arrears when they are reduced or cancelled in a proceeding to change the order. A payor who applies promptly to change support may therefore get a retroactive reduction, while one who waits risks arrears and interest continuing to accumulate. Whether a reduction is granted depends on the facts.

What counts as a change in circumstances

Under the Federal Child Support Guidelines, the meaning depends on the type of order.

The amount of child support is determined under the child support guidelines, and a court may depart from them only in limited cases and must give reasons. If your order was made under the federal Divorce Act, child support variation is governed by section 17 of that Act: it requires a change of circumstances as provided for in the applicable guidelines, and a variation order may be retroactive or prospective.

Enforcement is not the place to change support

A Family Maintenance Enforcement Act proceeding is not itself a way to change support. If the enforcement office has stepped in, you can still face tools such as notices of attachment, which require money owed to you to be deducted and remitted within 5 days. When arrears total $3,000 or more, after 30 days' notice the director can have ICBC cancel a driver's licence and refuse a licence and number plates for vehicles the debtor owns.

• Court hearings on default can lead to orders for reporting, immediate payment or imprisonment of up to 30 days.
• A committal hearing can lead to imprisonment, but not for consecutive periods totalling more than 90 days.
• Federal licence denial, including a passport, may apply where arrears are persistent, such as arrears in any three payment periods or accumulated arrears of $3,000 or more.

These consequences are a further reason to deal with the order itself rather than wait.

What to do next

In Provincial Court, an application to change or cancel a Family Law Act order is made on Form 3 (Application About a Family Law Matter) with Schedule 4 for child support, and a copy of the order or agreement is attached. Procedure in the Supreme Court is different, so confirm which court and which Act your order falls under before you begin.

• Find your order and check whether it was made under the Family Law Act or the Divorce Act.
• Write down what changed, and when, such as income, job status, health or the child's needs.
• Gather proof such as pay stubs, tax records, termination letters and medical notes.
• Keep paying whatever you can while you prepare, since the order stays in force.
• Apply to change the order promptly rather than waiting.
• Speak with a lawyer about whether a retroactive reduction of arrears is realistic in your situation.

Frequently asked questions