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(What can be done about my support arrears?).

If you are supposed to be paying support and you do not always pay the money when due, you likely have support arrears. In the old days, a parent behind in support payments could usually get those arrears reduced or even eliminated by the court. The old days were as recent as three years ago.

The law used to be that once the support arrears were large enough, and you could show you did not have the resources to pay them, you could get them reduced or eliminated. Basically, the larger your debt the more likely you would get a break. You also used to be able to blame the other parent for taking too long to collect the arrears. Not so any more.

In 1993, an Alberta Court of Queen's Bench decision changed the way our courts view arrears. In 1994, this decision was upheld by the Alberta Court of Appeal.

In this case, the husband owed $20,000 in arrears the day he walked into court to apply for a reduction. He left the courtroom owing in excess of $36,000. Not only were the arrears upheld, but he was ordered to pay interest on them and pay his ex-wife's costs of defending the arrears. When he appealed to the Court of Appeal, the picture was not much rosier. Alberta's highest court only reduced some of the interest he had to pay on the arrears and the costs he had to pay his wife.

The case acknowledged that it did not make sense to encourage paying spouses to simply wait until their arrears were so large that the court would reduce them. It also did not make sense to punish the parent who was to get the support for not pursuing payment of the arrears sooner.

This is not to say that arrears will never be reduced. The Court of Appeal stated that in some cases it may be justified in reducing the arrears. For example, a reduction may be possible where you were out of the work force for a considerable period of time back when the payments were due. Another instance would be where the children came to live with you and you omitted to have the support order terminated.

The best course of action is to vary the support order when your circumstances change. You should do something when you lose your job, or when the children start living with you. It is not enough that your ex-spouse says you do not have to pay any more. Ask him or her to consent to a Court Order terminating your support obligation.

You will rarely be successful if your argument is that the arrears have to be reduced because you cannot pay them right now. The court will not be able to look into the future and determine that you will never be able to pay the arrears. Someday you may inherit money, or win the lottery. If there is some ability to pay something, the focus then becomes a payment plan. You may try to avoid going to court and negotiate a reduction with the other lawyer in return for a payment schedule you can live with.

At present, Maintenance Enforcement has the power to make your life miserable. This power includes garnisheeing your wages, preventing you from renewing your driver's licence, and diverting your income tax return refund. Soon its powers of enforcement will be expanded to include preventing you from getting a passport and gaining access to federal databanks for information about you. Neither your arrears, nor Maintenance Enforcement, will go away without your taking steps to deal with them.

Pam Bell is a lawyer with Balbi & Company Legal Centre in Calgary.
COPYRIGHT 1997 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1997 Gale, Cengage Learning. All rights reserved.

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Author:Bell, Pam L.
Date:Apr 1, 1997
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