Child support arrears are a serious issue that affects both parents and children involved in a separation or divorce.
It is the responsibility of the non-custodial parent to pay child support regularly and on time to ensure that the child's needs are met.
However, when child support payments are not made as scheduled, the non-custodial parent may accumulate child support arrears, which can have serious consequences.
Child support arrears are the unpaid amount of child support payments that are past due.
When a non-custodial parent fails to make payments on time, the amount owed continues to accumulate, leading to child support arrears.
These arrears can cause significant financial and emotional stress for both parents and children, and may result in legal action.
In some cases, the non-custodial parent may seek to reduce or cancel child support arrears.
However, as per s. 174 of the Family Law Act, there can be no reduction or cancellation unless it would be "grossly unfair" not to do so. This means that there are specific circumstances that must be met before a reduction or cancellation of child support arrears can be granted.
One such circumstance is the conduct of the non-custodial parent. If the non-custodial parent has engaged in blameworthy conduct, such as failing to pay child support or deliberately hiding income, they may not be able to seek relief from the courts.
The Supreme Court of Canada has dealt comprehensively with the application to retroactively vary support orders in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231 [D.B.S.].
Although D.B.S. dealt with applications by a recipient parent to retroactively increase the amount of support being paid, the same analysis applies to an application by a payor to reduce support. The Court has identified four factors to be considered in determining the appropriateness of a retroactive child support award:
The circumstances surrounding the delay in bringing the application;
the payor parent's conduct;
the children's circumstances; and
any hardship caused by a retroactive child support order. A finding of unreasonable delay will militate against a retroactive child support award. Similarly, a payor parent's blameworthy conduct will also militate against a retroactive order.
Ultimately, child support is the right of the children, and it is the responsibility of both parents to ensure that they receive the support they need. Non-custodial parents must make child support payments on time and regularly, and if they fall behind, they must take steps to catch up as soon as possible. Seeking relief from child support arrears can be a complex process, and it is advisable to seek legal advice from SiLaw Group Family Lawyers to understand your rights and obligations. Call us today at (778) 381-9977 for a free consultation.
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