Dubreuil v. Poloway, , 2010 B.C.C.A. 297
In this case following a trial in 2001, the father was found to have a Guideline income for child support of $22,000 per year. The father was ordered to pay monthly child support in the amount of $328 per month with respect to the parties’ twin children and to pay the mother 40% of the daycare expenses. The arrears of child support at trial and expenses were fixed at $6,500. The father failed to comply with payment and did not file income tax returns for 2001 through 2007 until June of 2009. The father then applied to have his child support arrears reduced based on his actual income during the past several years. The child support arrears were $16,000. The Chambers Judge found in favour of reducing the arrears to $4,000.
The mother appealed the finding of the Chambers Judge to the Court of Appeal. The Court of Appeal overturned the decision of the Chambers Judge. The Court of Appeal commented that the Chambers Judge apparently accepted as true the father’s Affidavit material regarding his income without dealing with various inconsistencies and questions arising from the Affidavit material. The Chambers Judge made no findings of credibility or of fact and apparently did not carry out the analysis required of him under Section 96(2) of the Family Relations Act. Under that section a party must establish that it would be grossly unfair not to cancel the maintenance arrears. This is a fairly high standard to meet.
The Court of Appeal pointed out that there was no determination in the oral remarks of the Chambers Judge that he was satisfied that it would be grossly unfair not to reduce or cancel the father’s arrears. The Court of Appeal determined that the Chambers Judge was required to find that it would be grossly unfair not to reduce or cancel the arrears and to provide a reasoned analysis. The Court of Appeal therefore overturned the decision of the Chambers Judge.
This case clearly sets out that it is an uphill battle for an applicant to reduce or cancel child support arrears.
The earlier case of Arnold v. Power (1995) 13 B.C.L.R. (3d) 123 also provides a discussion of the cases and principles involved in the reduction of arrears including the following principles:
- If the Court is to consider the payor’s incapacity to pay, it must be a permanent situation and one that is out of the payor’s control.
- If the payor is able to work or generate income in another way (for example, through pension benefits), then the test of gross unfairness has not been met.
- The Court will not cancel child support arrears simply because the payor has a present inability to pay. To do so encourages a lack of diligent effort to pay and favours the parent who has not shouldered his or her share at the expense of the other parent.