How to Cancel Arrears of Spousal Support

Arrears of spousal support or back spousal support means spousal support which is due but has not been paid. For example, you and your spouse may separate in 2014 but you may not apply for spousal support until 2016. In this situation, you are owed ongoing spousal support and also retroactive or arrears of spousal support. Note that there is a big difference between arrears of spousal support and retroactive spousal support: 

 Arrears of BC Spousal Support vs. Retroactive BC Spousal Support

1. Arrears of spousal support means that you already have a court order that compels you to pay support but you have not paid it or have paid less than ordered. This is generally a no-no. Non-compliance with court orders is not an option but there are circumstances where it’s OK to owe arrears. This includes situations where after a court order you and your spouse agree on a lesser spousal support amount as explained below or you become disabled or have a less paying job and simply can’t afford to pay spousal support.
2. Retroactive Spousal Support means that you owe spousal support which you should have paid but have not paid but there is no court order compelling you to pay spousal support. In these situations, your spouse can ask for back spousal support from the time of separation or from the time you stopped paying voluntary support. Note however that waiting too long to seek retroactive spousal support may mean that you may lose her/his right to it because you left it for too long and it may be unfair to have to pay a big chunk of money due to the delay in seeking support.

Latest BC Court of Appeal Case on Arrears of Spousal Support

In the latest BC Court of Appeal Case of Boekhoff vs. Boekhoff, the husband was ordered to pay spousal support at $800 per month indefinitely in 1997. In 2001, the husband and the wife had a meeting where the husband proposed to reduce spousal support to $200 per month.

For whatever reason, the wife accepted $200 and was paid this amount for the next 10 years. In 2010, the wife lawyered up and sought arrears of spousal support in the amount of $70,000 which represented the shortage of support the husband did not pay for the previous 10 years. The husband did not pay her this amount.

In 2014, the wife brought a court application for the arrears of spousal support in the amount of $99,000. The judge rejected her claim and the court of appeal accepted the trial judge’d decision because:

1. The wife agreed to a reduced spousal support amount despite having a court order allowing her to be paid more;
2. The wife waited for 13 years to bring a claim for retroactive spousal support which in turn severely prejudiced the husband who simply didn’t have $99,000 to pay her;
3. The wife was bound by her agreement and the waiver of spousal support and could not back out of it.

The BC Court of Appeal stated:

[42]         The facts as found by the summary trial judge indicate that Ms. Boekhoff was fully aware of her right to receive the $800 payments. She was a party to the proceeding in which the order giving rise to that right was made. Mr. Boekhoff brought (unsuccessfully) at least one application to vary the support obligation before the 2001 meeting (2014 BCSC 2027 at para. 15) evidencing Ms. Boekhoff’s knowledge of her entitlement to spousal support. Prior to the 2001 meeting, Mr. Boekhoff paid Ms. Boekhoff the full amount of support (at para. 16). The summary trial judge’s recognition that the parties “agreed” to decrease the amount of support (whether or not that agreement rose to the level of a binding contract) presupposes Ms. Boekhoff’s full awareness of her rights.

[43]         The facts likewise support a finding that Ms. Boekhoff consciously and unequivocally intended to abandon her right to full payment. Again, in accepting that the parties reached an “agreement”, the summary trial judge accepted that Ms. Boekhoff communicated her willingness to receive less than the full amount of payment. He rejected (if not explicitly) Ms. Boekhoff’s assertion that she was under duress when she agreed to the reduction. Moreover, Ms. Boekhoff’s conduct following the 2001 meeting indicates a conscious intention to abandon her rights. As noted, she accepted $200 cheques, provided receipts for $800, and made no attempt to seek arrears until 2010, long after the end of her relationship with Mr. White.

There are many other circumstances where arrears of spousal support can be cancelled or reduced. If you are seeking retroactive spousal support or want to reduce it, it is important that you consult with a BC family lawyer to learn about the right strategy to use in this very complicated area of law. Contact our top rated lawyers* for a consultation at 604-974-9529 or email [email protected].

*Leena Yousef is rated as the number one family lawyer in British Columbia by Lawyerratings.com and as the top 3 best lawyers in Vancouver by the threebest.com.Also voted as the best Vancouver family law firm in Vancouver by Top Choice Awards.