M. Enforcement of Support Arrears against Bankrupt Defaulter

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 469-470

Page 469

Any claim for spousal or child support under any court order or agreement made before the bankruptcy of the debtor for amounts accrued in the year before that date, plus any lump sum amount payable under the order or agreement before that date, is provable in proceedings under the Bankruptcy and Insolvency Act. Furthermore, priority treatment is accorded to such unpaid support arrears as against all ordinary unsecured creditors of the bankrupt. These rights supplement pre-existing enforcement remedies.¹²¹A court-ordered payment relating to the enforcement of child support obligations, including interest and costs, is unaffected by the obligor’s assignment in bankruptcy.¹²²Bankruptcy does not release a support payor from the obligation to pay child support but a court

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is able to look at the general circumstances and make retroactive adjustments, with a consequential remission of arrears that have accrued.¹²³A costs award with respect to a support order is part of a support award for the purposes of the Bankruptcy and Insolvency Act and survives the bankruptcy.¹²⁴

Arrears of child support subrogated to and owing to the Provincial Treasurer of Alberta by virtue of social assistance provided to the family dependants are not extinguished by the discharge of the obligor from bankruptcy. Section 178(1)(c) of the Bankruptcy and Insolvency Act¹²⁵does not specify to whom the support debt or liability must be owing and is sufficiently broad to encompass the situation where the provincial government is subrogated to the support rights of the court-ordered recipient by reason of social assistance provided.¹²⁶

[121] See Robert A. Klotz, "New Enforcement Remedy When Payer Becomes Bankrupt" (1995) 16 R.F.L. (4th) 214. See also Graves v. Graves, [2003] B.C.J. No. 2240 (S.C.).

[122] Beattie v. Ladouceur, [2001] O.J. No. 4852 (S.C.J.) (judicial review of relevant principles and case law).

[123] Dicks v. Dicks, [2000] O.J. No. 3964 (S.C.J.).

[124] Lees (Re), 2002 BCSC 570; S.L.M. v. D.R.M., 2003 BCSC 1094; Manley v. Lund, 2009 BCSC 903.

[125] R.S.C. 1985, c. B-3.

[126] Russell v. Russell, [2005] S.J. No. 423 (Q.B.).