News Articles

Reducing Arrears of Child Support

When a divorcing couple has children, the Court must decide who will be responsible for the care of the children by making a custody order.  The Court must also attempt to ensure that the custodial parent has sufficient financial resources to raise the children by ordering the payment of child support.  Generally, one parent is required to make monthly child support payments to the other parent based upon his or her ability to pay. 

Occasionally, however, the paying parent gets behind in his payments, and arrears start to accumulate.  When faced with this situation, if the paying parent chooses to bury his head in the sand, the arrears can mount quite quickly.  Eventually the paying parent is faced with a debt that seems too large to ever pay, and so he applies to the Court to have the arrears of child support reduced.  Obviously, it is not easy to get this kind of relief, otherwise anyone could ignore his obligation to pay child support and then simply have the debt wiped out.  To ensure that this does not happen, the Courts have established rules for the reduction of arrears of child support.

The general rule that the Court will apply is that, in the absence of special circumstances, a reduction of arrears of child support should only be considered when the paying parent can prove that he currently cannot pay and will not likely be able to pay the arrears in the future.  Therefore, the fact that you have recently lost your job is not a good enough reason to reduce arrears.  Instead, you have to also show that you will never be able to make the kind of income necessary to pay off the arrears.  This can be very difficult to prove to the Court's satisfaction, as the Court will be inclined to simply stay enforcement of arrears for a period of time while waiting to see if the paying parent's financial position will improve in the future.

The Court is more likely to reduce the arrears of child support when special circumstances can be shown.  The major special circumstance justifying a reduction of arrears is when the paying parent can prove that, at the time the arrears were accumulating, and for a substantial period, he was unable to make the child support payments as they came due.  A brief period of low income will not be sufficient.  Instead, the Court will have to decide whether, at the time that the arrears were accumulating, it would have been appropriate to reduce child support payments.  In deciding this question, the Court will be very skeptical about any claim that a reduction of arrears is necessary, and will likely have serious questions as to why no application to reduce child support was made at the time.  Further, the Court will want to see that at least some payments were made during this period.

A common difficulty arises where the paying parent, by agreement with the other parent, begins paying less support than is ordered.  At some later date, usually following a custody and access related dispute, the custodial parent brings a claim for all of the support set out in the original order which was never formally varied.  The law in these circumstances is that, even if the parties have signed a written agreement to reduce arrears, the Court is not bound by this agreement.  While such an agreement will be taken into consideration, it will only be given effect if the court determines that the level of support is appropriate.  Accordingly, the only way to be sure that you will not be surprised with a large claim for arrears of child support is to insist that a new order be entered varying child support.  

When a person's financial situation changes for the worse, it can be difficult to find the money and the motivation necessary to bring an application to vary child support.  If it appears that this change will be of some duration, however, it is important that an application be brought without delay to avoid the accumulation of unmanageable arrears.

By Craig Shworan
November 13, 2002