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08-Mar-19

Hi Divorce Tip Guy,

I have not paid child support in a long time so I have built up a large arrears amount. Is there any way I can negotiate a lower arrears amount now, since its impossible to catch up?

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The information contained below in this tip is
Copyright (c) Eric Dormer, 2008.

Legal Disclaimer:
Note that I am not a lawyer and any information provided is just helpful knowledge from someone who has been there. You should not interpret it as legal advice. The author is not responsible for adverse outcomes related to acting upon any information offered. Consult a lawyer when necessary.

Its always possible to settle on a lower amount of arrears child support owing, if both you and the child's mother agree. Generally the court will then consent to the new lower arrears amount provided the agreement to lower the arrears amount is by consent and it is fairly reasonable. If your agreement is by consent, the court takes a very wide and tolerant view of what is reasonable. In addition to stating the lower arrears amount, you should also indicate a credible payment mechanism and schedule.

However, if you want to wipe the arrears to zero, and you have reasonable income, the court may simply refuse to endorse your agreement despite the fact you have the mothers consent. Remember that the original child support order was issued by the court on behalf of the child, so strictly speaking, its up to the court what new arrangement they will accept, its not simply an arrangement between the mother and the father.

You imply that your reason for wanting a lower amount is your inability to pay the accrued child support arrears. There is a well established test in case law in Ontario you must pass to justify this reasoning. It must be clear to the court that you cannot afford to pay, now or in the future, in all probability. A temporary financial crunch is not a good enough reason to convince the court to adjust arrears downward.

If you are asking the court to set the arrears amount to zero or to a low value, without the consent of the mother, then this test is very important. You have to show the court your real financial situation, complete with a few years of historical tax returns, and a current financial statement showing your assets and liabilities, and so on.

Its important to document any agreement to rescind child support arrears (ie: set the arrears to zero or lower it) in writing. Its a good idea to get it endorsed by the court also, preventing the child's mother from later demanding the original amount if your financial circumstances happen to improve.

If your child is still a dependent minor, and you are now able to pay something towards ongoing child support, this is very useful to mention also. It shows some good faith and will make the court more receptive to re-evaluating the arrears.

Your brief letter touches on a very interesting topic, but many relevant issues you did not disclose. These include: the current age of your child, how long you have not paid child support, did you pay child support and/or other extraordinary expenses in the past, if you paid in the past what caused you to stop paying, did the mother make any attempts to collect arrears child support, your historical and current income level, total arrears amount, current ongoing child support obligations, and current child support payment record.

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DIvorce Tip #005: Rescinding or Lowering Arrears Child Support

08-Mar-19

DIvorce Tip #005:
Rescinding or Lowering Arrears Child Support