29 April 2010

Family Relations Act Review Update

Readers will recall the review of the Family Relations Act begun by the Attorney General's office in 2007. As mentioned in a post last year, work on the project has continued behind the scenes following the end of the AG's public consultations.

I have learned that the AG is due to release a white paper in June summarizing amendments that will be made to the Family Relations Act as well as options for amendments which may be made to the act. Will there be another opportunity for public comment before the bill is tabled in the legislature?

To read other posts about the FRA review , click on the "Family Relations Act" label below.

3 comments:

  1. Where is the link that will allow me to comment on the proposed changes to the Family Relations Act? I would like to have input on this.

    Thanks!!

    ReplyDelete
  2. The contact information for comments and feedback is available at www.ag.gov.bc.ca/legislation/.

    ReplyDelete
  3. FMEP arrears and retroactive variation

    A child support payor with an order under the Child Support Guidelines who suffers an innocent loss of earnings and fails to make timely variation applications will accrue "FMEP arrears" if the order has been registered with Family Maintenance Enforcement Program (FMEP). When the unrepresented payor finally goes to family court to retroactively vary the order under s. 96(1.1) of the Family Relations Act, the judge takes one look at the FMEP statement, and suddenly the variation proceeding morphs into an enforcement proceeding under s. 96(2) of the Family Relations Act.

    Now, rather than using the payor's income to objectively determine the amount owing under the B.C. Child Support Guidelines Regulation, the court instead uses the same evidence to determine the payor's past, present, and future ability to pay the "FMEP arrears," even if the payor has actually paid more than enough under the Regulation. Theoretically, a payor who paid more than the amounts prescribed by law could be imprisoned for failing to pay child support!

    If the child support order or agreement has been assigned to the Ministry of Housing and Social Development, the recipient of the windfall is the Provincial Crown.

    For an example in which the payor got an objective award under the Regulation because FMEP was not involved, see JBB v. VRG, Reasons for Judgment, Abbotsford Provincial Court, May 14, 2009 (from the Provincial Court's website). In this retroactive variation proceeding, the payor got a seven year retroactive award based on his actual (decreased) income under the Guidelines. The judge further ordered that if in the event the recalculation under the Guidelines produced arrears against the recipient parent, that these be cancelled, without explicitly invoking s. 96(2) of the Family Relations Act (cancellation or reduction of arrears) in favour of the recipient parent. Had the order in JBB v. VRG been registered with FMEP, the court would likely have found the payor to be in substantial arrears!

    The problem is that the legal definition of "arrears" as applied to a child support order is not always congruent with the phrase, "the amount owing under the child support order" (that is, owing under the Regulation). To rectify this ambiguity, the Family Relations Act and the Family Maintenance Enforcement Act (even more so) need to explicitly define "arrears" under a child support order or agreement made according to a table as meaning, "the amount owing under the Child Support Guidelines Regulation."

    It is illogical, unfair, and perhaps unconstitutional, that those who have paid more than the prescribed amounts under the Regulation would face enforcement actions by FMEP and punitive awards by the court on the basis they have accrued "FMEP arrears."

    David W. Dickinson

    ReplyDelete