Section 174 of the Family Law Act sets out the factors a court may consider when deciding whether or not to reduce or cancel arrears of child support.
Reducing or cancelling arrears
174 (1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.
(2) For the purposes of this section, the court may consider
(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,
(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and
(c) any circumstances that the court considers relevant.
(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.
(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the Family Maintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest.
The test remains whether or not it would be “grossly unfair” to reduce or cancel arrears of child support. This test is not easily met by a payor parent and there is a heavy onus on the parent seeking to reduce arrears.
The court in Earle v. Earle  B.C.J. No. 383 (QL) (S.C.) sets out the factors a court will consider:
- The onus is on the applicant seeking to reduce or cancel arrears to show a change in circumstances;
- Arrears will only be cancelled if the applicant is unable to pay now and unable to pay in the future;
- The applicant must provide full financial disclosure under oath that the change in financial circumstances is significant and long lasting, the change was not the result of choice, and efforts were made to earn money, but were unsuccessful;
- The applicant’s responsibility for a second family does not relieve him or her of obligations to support the first family;
- Delay in enforcement is generally not a factor in arrears of child support;
- The rule against hoarding does not apply to child support;
- Arrears will not be cancelled because someone else had provided financial assistance to the children;
- Arrears will not be cancelled because the children no longer need the money;
- An agreement between parents to not pay support cannot be relied on because support is the right of the child;
- An applicant’s lack of access to the children is not a factor;
- Money spent directly on the children is not a factor; and
- The lack of legal advice is not a reason in itself.