Enforcing Orders and Agreements for Support (Script 132)

From Clicklaw Wikibooks

This script explains the enforcement of court orders and separation agreements that require spousal or child support to be paid.

The references to “spouse” in this script apply to married spouses and unmarried spouses, and to former spouses.

The references to “parent” apply to everyone who is a parent, including married and unmarried spouses, to stepparents, and to people who were never in a married or unmarried relationship but have a child together.

Support

This script talks about child support, which is money paid by spouses and parents, and about spousal support, sometimes called maintenance or alimony, which is money paid by spouses. In this script, a “payor” is someone who is required to pay child support or spousal support as a result of a court order or a separation agreement; a “recipient” is someone who is entitled to receive child support or spousal support from a payor.

What if a payor fails to pay support

A spouse or parent who has to pay support because of a court order or separation agreement, may not pay the support as required. When the payor stops paying all or some of the required support payments, a debt begins to accumulate to the person who is supposed to get the payments—the recipient. The money owed is called the payor’s “arrears” or “arrears of support”.

Court orders and separation agreements are different

A court order for the payment of support is a mandatory direction of the court, and the recipient can take steps to enforce a court order right away, whether the payor has missed any payments or not. A separation agreement, on the other hand, is a private contract between the spouses. To enforce a separation agreement, it must be first filed in either the Provincial Court or the Supreme Court. Once an agreement has been filed, it can be enforced in the same ways a court order can be enforced, and the recipient can take steps to enforce it right away.

How to collect arrears of support?

There are two ways:

  • get help from the Family Maintenance Enforcement Program; or
  • enforce the order or agreement in court.

What is the Family Maintenance Enforcement Program?

The Family Maintenance Enforcement Program (FMEP) is a free service provided by the provincial government. It monitors support payments and enforces court orders and filed separation agreements where support is to be paid. There’s no cost to the recipient for the services of this program.

How to enroll in FMEP?

Anyone who has a support order or separation agreement filed in court can enroll. The application form and information about the program is available online www.fmep.gov.bc.ca or by phone 604.678.5670 in the lower mainland or 250.220.4040 in the Greater Victoria area. These and other FMEP numbers are also listed in the Government of British Columbia blue pages section of the phone directory under “Family Maintenance Enforcement Program”.

FMEP assumes responsibility for enforcing the order or agreement

FMEP will begin to enforce the order or agreement within about four months of the enrollment date. FMEP manages its enforcement procedures with little or no involvement on the recipient’s part. After enrolment, the recipient can take steps to enforcement the order or agreement independently, however he or she must get the FMEP’s permission first.

It is often best to let FMEP handle the matter after enrollment. The program can take all legal actions that the recipient could take, as well as a lot of other actions that the recipient cannot, like suspending the payor’s driver’s licence or taking away his or her passport.

How does FMEP enforce an order or agreement?

Once the recipient has enrolled in FMEP, all support payments must be sent to the program. FMEP will then send the payments on to the recipient. FMEP will track when payments are due, and when and how much gets paid. There are several steps the FMEP can take when arrears begin to accumulate:

  • Garnishment: If a payment isn’t made, the program can seize the wages owed to the payor to cover the support owed. This is normally the FMEP’s first step.
  • Notice of Attachment: The program can issue a Notice of Attachment against any person or institution that owes money to the payor, so that the program will receive this money instead. The institutions that can be attached include employers, banks and the Workers’ Compensation Board. Payments from the Government of Canada, like tax refunds, Employment Insurance payments and other federal payments or rebates, can also be attached.
  • Property liens: The program can file support orders against property owned by the payor, so that the property cannot be sold or re-mortgaged without the arrears being dealt with first.
  • Jail: Ultimately, if the payor still doesn’t pay, the FMEP can ask the court to send him or her to jail.

How successful is FMEP in collecting arrears?

Sometimes the kinds of steps available to FMEP aren’t practical or won’t be successful, for example garnishing wages if the payor is self-employed or is unemployed. In cases like these, lawyers for FMEP usually have a hearing in Provincial Court, called a default hearing, to see how the payor can meet his or her support obligation and begin to pay down the arrears.

It is necessary to act promptly

The recipient should register the support order or separation agreement as soon as the payor first misses a payment or doesn’t pay the full amount owing. It can take about four months to be fully registered with FMEP. Collecting on old court orders or separation agreements can be difficult; thus, the recipient should talk to a lawyer and discuss the options available to collect arrears.

In general, it’s best to let FMEP deal with arrears

FMEP is free and can do all the things the recipient can do to enforce a support obligation and more. The recipient can independently take certain steps to collect the arrears, but those steps can be complicated. If the recipient is enrolled in FMEP, he or she must let FMEP know if he or she intend to try to collect the arrears independently.

What steps can the recipient take?

If the recipient decides not to use FMEP, court orders and filed separation agreements for support can be enforced under the Family Law Act, the Family Maintenance Enforcement Act and through certain provisions of the Supreme Court Family Rules. The recipient can, among other things:

  • apply to garnish the payor’s wages;
  • apply for an order that some of the payor’s property be sold to pay the arrears; and
  • apply for an order to seize certain kinds of bank accounts and RRSP accounts.

There are also a number of ways the recipient can force the payor to provide information about his or her finances. This may help to figure out how to best collect the arrears. For example, the recipient can require the payor to:

  • attend a default hearing before a judge and produce a statement of his or her finances; or
  • attend a hearing in the Supreme Court called an Examination in Aid of Execution to be questioned under oath about his or her finances.

In order to proceed with any of the steps, the recipient will have to make a court application and explain to a judge why a particular order should be granted. Because the court application process can be complicated, it’s a good idea to speak to a lawyer first.

More information

  • For more information about the Family Maintenance Enforcement Program, visit their website at www.fmep.gov.bc.ca. Or call FMEP at 604.678.5670 in the lower mainland, 250.220.4040 in Victoria or toll-free 1.800.663.3455 elsewhere in BC.


[updated May 2017]

The above was last reviewed for accuracy by Zahra H. Jimale.


© Copyright 2017, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.


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