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. 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 and then it can be enforced in the same ways a court order can be enforced.

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 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 at www.fmep.gov.bc.ca, or by phone 604.678.5670 in the lower mainland, 250.220.4040 in the Greater Victoria area, or 250.434.6020 in Northern and Interior BC.

FMEP assumes responsibility for enforcing the order or agreement

FMEP will begin to enforce the order or agreement on behalf of the recipient, as soon as all necessary enrollment information is collected.

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 restricting the payor’s driver’s licence or taking away his or her passport. The enforcement action(s) that FMEP will use are dependent on how much money the payor owes, what FMEP knows about the payor’s current situation, and the actions FMEP determines will have the best chance of success in each particular case.

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 process and send the payments on to the recipient. FMEP will track when payments are due, and when and how much gets paid. If payments are missed and arrears accumulate, there are several steps the FMEP can take, including:

  • Garnishment: If a payment isn’t made, the program can seize the wages owed to the payor to cover the support owed.
  • 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 money can be redirected to the program and then sent to the recipient. 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.
  • License Denial/Suspension: When a payor has fallen $3,000 or more behind in maintenance payments and all attempts to collect the maintenance in other ways have been unsuccessful, the program can advise the Federal Government to suspend or deny a payor’s passport and/or aviation or marine licences, as well as instruct ICBC to refuse to renew a payor’s drivers licence.
  • Default Fee: Whenever a payor misses or is late with two payments within the same calendar year, FMEP will automatically charge the payor a Default Fee. The fee goes to the BC government, not to the recipient, to help the government cover the costs of operating this program. FMEP will also charge the payor daily interests on any late payments. All interest goes to the recipient.
  • Court Enforcement: Ultimately, if the payor still doesn’t pay, the FMEP can bring the case to court. In court, the payor will be required to explain to the judge why payments are in arrears, and the judge can decide to take additional action to enforce payment of the arrears—up to and including a jail sentence in some cases.

How successful is FMEP in collecting arrears?

The FMEP will do their best to collect maintenance payments. In the vast majority of cases, recipients receive some or all of the support that is due each year. However, some payors make it very difficult for the FMEP to collect—even going to the extent of leaving the country to avoid paying maintenance. Others may have no income or assets, or may be receiving income assistance, which means it may take a long time to collect what is owed to recipients. But FMEP will continue to pursue payments as long as the maintenance order or agreement is enrolled with them.

It is necessary to act promptly

It is always a good idea to be proactive and enroll in FMEP, if there are problems around support payments. If the recipient has not yet enrolled in FMEP and the payor misses a payment or doesn’t pay the full amount of owing, the recipient should enroll immediately. If the recipient decides to enforce their order or separation agreement on their own, without the help of the FMEP, they should be aware that collecting on court orders or separation agreements can be time-consuming and 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. If the recipient wishes to pursue independent enforcement action while enrolled with FMEP, she or he must contact FMEP to obtain permission before doing so.

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 March 2018]

The above was last reviewed for accuracy by Victor Liang.


© Copyright 2018, 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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