Q. Enforcement, Suspension and Remission of Arrears

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 471-473

Page 471

The principles enunciated in Willick v. Willick,¹³⁵whereby a material change is required to justify variation of a child support order, have been deemed inapplicable to a proceeding that is confined to the cancellation of arrears, because sections 96(2) and (3) of the Family Relations Act (B.C.) constitute a separate code governing this type of application.¹³⁶In

Llewellyn v. Llewellyn,¹³⁷the British Columbia Court of Appeal treated the father’s defence to an enforcement proceeding respecting child support arrears as if it were an application to retroactively vary the existing order pursuant to section 17 of the Divorce Act, thereby avoiding any need for the parents to return to court on a variation application. The appellate court concluded that it should assist the parents to conserve their resources that would be better spent on their children than on further litigation.

In proceedings to enforce arrears of child support, the defaulter has the onus of showing cause why the order should not be enforced and of satisfying the court that he or she was unable to make the payments as they become due.¹³⁸Child support obligations take priority over commercial obligations; where there is insufficient money to discharge both, child support must be paid first.¹³⁹Arrears of child support are not discharged by incidental payments to the children or by the purchase of clothing and other items for the children.¹⁴⁰Where the defaulter’s income is sufficient only to meet personal minimal and legitimate living expenses, the answer does not lie in an order for payment that is beyond his or

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her capacity. Such an order would only invite continued default and could lead to emotional stress and the possible loss of any earning capacity.¹⁴¹A defaulting parent’s remarriage does not result in the imposition of any obligation on his or her second spouse to make good the default, but that spouse’s contribution toward the household expenses may be relevant in determining the defaulter’s capacity to pay.¹⁴²Enforcement of arrears is inappropriate where the obligor is bankrupt or on the verge of bankruptcy.¹⁴³Although a court may hesitate to order that a defaulter’s farm or business be sold to pay arrears of child support if this would have the effect of jeopardizing the defaulter’s income and future capacity to pay ongoing child support, a court may properly order that the defaulter convert a portion of existing RRSPs into cash for the purpose of discharging the child support arrears.¹⁴⁴Arrears of support do not accrue after a...