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What can be done to reduce or eliminate child and spousal support arrears?
2025.01.20 // Read More
Michael Long recently appeared as counsel at the B.C. Court of Appeal, where he successfully upheld a Supreme Court decision eliminating $280,000 of child and spousal support arrears, interest, and penalties: Hildebrand v. Hildebrand, 2024 BCCA 395
An unpaid child support or spousal support order can have serious consequences for the payor. Under the Family Maintenance Enforcement Act, the B.C. Family Maintenance Agency (“BCFMA”) (Formerly, the Family Maintenance Enforcement Program), has wide-ranging powers of enforcement, including the ability to garnish wages and bank accounts, intercept tax refunds and EI benefits, cancel a driver’s license, and deny the issuance of a new passport.
Before taking enforcement steps against a payor, the BCFMA will often contact the recipient and enter a voluntary payment arrangement, sometimes agreeing to accept lower payments than required by a court order. However, this should only be viewed as a stop-gap measure, as arrears and interest will continue to accumulate based on an order until it is either fully paid or changed by a new order. The BCFMA will typically expect a payor in arrears to take action to change their support order in a timely manner if they do not have the means to pay the full amount required.
Retroactive variation
In situations where a payor’s income has decreased since the time when a support order was granted, it is possible to apply for a retroactive variation of support. To succeed, a payor must provide evidence of a past material change in their income. An important limitation on retroactive variations is the presumption that the court will only vary a support order back to the date of effective notice, up to three years before formal notice. In this context, effective notice refers to notice from the payor to the recipient that their income has declined with appropriate financial disclosure. Formal notice refers to notice of an application to vary support. As a payor, if you no longer earn as much income as when your child or spousal support payments were determined, a critical first step is to communicate in writing to the recipient that your income has decreased and to provide the evidence required by s. 21 of the Federal Child Support Guidelines, including tax returns, notices of assessment, and recent pay stubs.
Reducing or cancelling arrears
Applications to cancel arrears, referred to as rescission under the Divorce Act, are based on a different set of factors. Section 174 of the Family Law Act allows the court to reduce or cancel arrears owing under a support order if satisfied that to not do so would be grossly unfair. In making this determination, the court may consider the efforts made by the payor to comply with the order, the reasons why the payor cannot pay the arrears, and other relevant circumstances. Since the support arrears often represent sums that the payor had a historical ability to pay but chose not to, courts have taken a highly restrictive approach to cancelling arrears. Generally, to succeed in an application to cancel arrears, the payor must establish a material change in circumstances preventing them from paying either now or in the future.
Long-term retroactive variation
Hildebrand v. Hildebrand, 2024 BCCA 395 (“Hildebrand”), was a special case in which the payor was able to retroactively vary his support over almost a decade. The Supreme Court found that the payor had overpaid support relative to his actual income since support orders were entered in 2014. The long-term recalculation of the payor’s support eliminated $280,000 of support arrears, interest, and penalties. The Court of Appeal upheld this result because the Supreme Court applied the four-part test set out by the Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24 (“Colucci”) to depart from the usual presumptive three-year limitation on retroactive variation given the unusual circumstances of the case.
The four-part test in Colucci considered:
1. The reason for the payor’s delay in seeking to reduce support;
2. The conduct of the payor;
3. The circumstances of the children; and
4. The hardship to the payor if the period of retroactivity was not lengthened beyond the presumptive date.
In Hildebrand, the Supreme Court accepted that the payor’s delay was to some degree explained by the parties’ frequent litigation over parenting issues and the payor’s limited means. In terms of conduct, the payor had always made payments and overpaid relative to his actual income with limited exception. The Supreme Court observed that the children had participated in expensive hockey programs and that the recipient had the ability to make substantial charitable donations. Finally, with respect to the payor’s hardship, the Supreme Court found that without adjustment, the payor’s support obligations would effectively consume close to the entirety of the payor’s after-tax income over a nine-year period. The Court of Appeal did not find that the Supreme Court erred in its analysis.
The Breach of a Statutory Provision Does Not Determine Negligence
2018.07.04 // Read More
Tiffany P.K. Tsang and Callan W. MacKinlay
In cases such as motor vehicle accident claims, it is tempting for parties (and even courts) to infer negligence from a breach of a statutory regulation; however, we are reminded in the recent case of Haynes v. Haynes, 2017 BCCA 131 that the factual matrix and evidence of surrounding circumstances ultimately determines liability. A regulatory breach is just one element of that factual matrix. Fundamentally, the plaintiff still bears the burden of proving a breach of the common law standard of care, notwithstanding the presence of a regulatory breach by the defendant. That breach alone will not suffice to prove negligence.
Allocation of Defence Costs and Conduct of Defence
2018.06.27 // Read More
Scott W.K. Urquhart and Nikta Shirazian
I. Introduction
In most instances where a duty to defend has been triggered the insurer has the obligation to pay the defence costs and will have conduct of the defence. However, this arrangement is not true in all cases. Indeed, certain circumstances arise where the costs of defending an action can be allocated amongst various parties. For example, such a scenario may arise when an insured has more than one liability insurer and both are obligated to defend an action. It may also arise in instances where there are covered and uncovered aspects to a particular claim. The purpose of this paper is to provide an overview of the legal principles governing the allocation of defence costs in the aforementioned scenarios. This paper will also address the legal principles governing the determination of which party obtains conduct of the defence in such circumstances.
Social Media Evidence On Trial
2017.08.21 // Read More
Vanessa Gauthier is on the panel for Risk Management Counsel of Canada’s mock trial on the complex and changing issues surrounding the use of social media evidence in insurance defense claims. The mock trial is taking place on September 21st in Calgary. Issues to be addressed include:
- The admissibility of social media evidence at trial
- Authenticating and dating social media entries
- Ethical issues associated with obtaining social media evidence
Lindsay LLP Among Canadian Top Ten Boutique Firms
2017.06.20 // Read More
We are pleased to announce that Lindsay LLP has been ranked one of the Top Ten Boutique Insurance Law Firms in Canada in a survey done by The Canadian Lawyer Magazine.
The Canadian Legal Lexpert Directory profiles leading practitioners across Canada in over 60 practice areas and leading law firms in over 40 practice areas as identified via an extensive, annual peer survey. We are proud to say that Lindsay LLP is one of Vancouver’s Leading firms that is consistently recommended.
Continuing Legal Education Society of British Columbia
2016.08.11 // Read More
The Continuing Legal Education Society of British Columbia works with over 1,000 volunteers every year to support a culture of learning, to encourage innovation, and to give back to the BC bar. We are very proud to say that our own Richard B. Lindsay and Jan Lindsay are a part of this list of prolific contributors.
Good Intentions, Unintended Consequences: Potential Pitfalls for the Insurance Industry and the CTR.
2016.04.27 // Read More
Authors:Scott W.K. Urquhart and Margot Liechti
British Columbia is in the process of rolling out a new dispute resolution mechanism for strata disputes and matters falling within the Provincial Court Small Claims jurisdiction ($25,000.00). The object of the Civil Resolution Tribunal (the “CRT”) is admirable. The aim is to provide convenient and cheaper access to justice through an online portal that is user friendly and purged of byzantine legal processes.
Course of Construction Policies and Consequential Economic Losses
2016.04.20 // Read More
Author: Scott W.K. Urquhart
Acciona v. Allianz and Claims for Increased Expense.
Much ink has been spilled on the BC courts’ decisions in Acciona Infrastructure Canada Inc. v. Allianz Global Risks US Insurance Company[1]. But the lion’s share of the commentary has focussed on the defect exclusion at issue in that case, known as the LEG 2/96 exclusion, and the finding that it did not exclude damage to defectively constructed property. Garnering less attention are the courts’ rulings with respect to the economic claims presented by the insured.
Sun Run 2016
2016.04.19 // Read More
Team Lindsay LLP participated in the 32nd Annual Vancouver Sun Run on April 17, 2016 in the glorious sunshine. We capped off our successful completion of the run with a post race gathering on the rooftop deck.
Jan Lindsay Wins Peter S. Hyndman Mentorship Award
2015.11.27 // Read More
The Vancouver Bar Association is pleased to announce that Jan Lindsay, Q.C. is the recipient of the 2015 Peter S. Hyndman Mentorship Award. This award is conferred each year to recognize a member of the legal profession who has distinguished herself or himself as having been an outstanding mentor.Jan is an exemplary mentor who has spent an extraordinary amount of time passing onto others her knowledge, insight, wisdom and experience.She has always given 100% to the profession. Her door is always an open one. It is impossible to slow her down. Her energy and enthusiasm for the law is mind boggling.
Congratulations Jan! We are all proud of this and your many accomplishments. Well deserved!