How to Reduce Child Support Arrears in BC

Author: SiLaw Group Family Lawyers
Date: Mar 11, 2023
Read time: 2 min read

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In BC, a court can reduce or cancel child support arrears only in limited circumstances: under section 174 of the Family Law Act, it must be satisfied that it would be "grossly unfair" not to do so. Here is what that test means and how the courts apply it.

What Are Child Support Arrears?

Child support arrears are the unpaid amount of child support payments that are past due.

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 payor parent to pay child support regularly and on time so that the child's needs are met.

When a payor 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.

When Will a BC Court Cancel Arrears? The "Grossly Unfair" Test

In some cases, the payor 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 payor parent. If the payor 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 Four D.B.S. Factors

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:

1. The circumstances surrounding the delay in bringing the application;

2. the payor parent's conduct;

3. the children's circumstances; and

4. any hardship caused by a retroactive child support order. A finding of unreasonable delay by the recipient parent may weigh against a retroactive child support award. By contrast, blameworthy conduct by the payor parent weighs in favour of one.

Since this article was first published, the Supreme Court of Canada has returned to retroactive child support in Michel v. Graydon, 2020 SCC 24, holding that section 152 of the Family Law Act allows a court to vary a child support order retroactively even after the beneficiary is no longer a child, and confirming that a payor's failure to accurately disclose income is blameworthy conduct that supports a retroactive award.

How to Apply in BC

Arrears are not reduced automatically — s. 174 relief is only available "on application" to the court, and you will need financial evidence showing why it would be grossly unfair not to reduce or cancel the arrears. If your support order or agreement is enforced through the BC Family Maintenance Agency (which administers the Family Maintenance Enforcement Program), enforcement generally continues until the arrears are varied or cancelled by the court, so it is important to apply rather than simply stop paying. For more on how retroactive support works, see our page on retroactive child support in BC.

Ultimately, child support is the right of the children, and it is the responsibility of both parents to make sure that they receive the support they need. Payor 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 get a free consultation with a family lawyer at SiLaw Group Family Lawyers to understand your rights and obligations. Call us today at (778) 381-9977 for a free consultation.