Enforcing Support Orders and Agreements (No. 132)

From Clicklaw Wikibooks

Unfortunately, some parties who owe child support or spousal support fail to make their payments. Learn the steps to take to enforce payments owed under a support order or agreement.

Understand your legal rights

If spousal support or child support is not paid

After a couple separates, one of the parties may pay spousal support to the other to help with living expenses. If they had children, one parent may pay child support to the other to help cover the expenses associated with raising the children.

Spousal support or child support payments can be set out in a court order or a separation agreement.

If the party who has to pay support does not do so, the money they owe is called “arrears” or “arrears of support”.

There are two ways a party who is entitled to support can collect arrears:

  1. they can take steps themselves to enforce the support order or agreement in court, or
  2. they can get help from a free government program, the Family Maintenance Enforcement Program.

Court orders differ from separation agreements

A court order for the payment of support is a mandatory direction of the court. The party who is owed support can take steps to enforce a court order right away.

A separation agreement, on the other hand, is a private contract between a couple who has separated. Like any contract, it can be enforced in the courts under the law of contracts. But it’s simpler to file the separation agreement in court. This allows the agreement to be enforced as if it was a court order.

Enforcement steps you can take on your own

If support payments are missed, the person owed support has several options to enforce payment. Where you have a support order or a separation agreement filed in court, you can (among other steps):

  • Apply to garnish the wages of the person who owes support. This means their employer must send a portion of their wages to the court (up to 50%). That money can then be paid to you to cover the support arrears.
  • Apply for an order that some of their property be sold to pay the arrears.
  • Apply for an order to seize (take money from) certain kinds of bank accounts and retirement savings accounts.

There are also a number of ways you can force the other party to provide information about their finances. Doing so can help you figure out how to best collect the arrears. For example, you can require the other party to:

  • Attend a default hearing. This is a court hearing where the other party will be required to produce a statement of their finances.
  • Attend an examination hearing. This is a court hearing where you can question the other party under oath about their finances.

For any of these steps, you must apply to court and explain to a judge why they should grant the order you are requesting. The process of applying to court can be complicated. It’s a good idea to speak with a lawyer first.

How the Family Maintenance Enforcement Program works

The Family Maintenance Enforcement Program (FMEP) is a free service provided by the provincial government. The program enforces support orders and agreements on behalf of the person who is owed support.

Enrolling in the program

Anyone with a support order or separation agreement filed in court can enroll in the Family Maintenance Enforcement Program. The application form is available online at fmep.gov.bc.ca. You can also call the program at 604-678-5670 in the Lower Mainland, 250-220-4040 in Greater Victoria, or 250-434-6020 in Northern and Interior BC.

On being enrolled in the program

Once someone is enrolled in the Family Maintenance Enforcement Program, all support payments must be sent to the program. The program processes the payments and sends them on to the person owed support. The program tracks when payments are due, and when and how much gets paid. If payments are missed and arrears accumulate, there are several steps the program can take, explained shortly.

Default fee

Whenever a person who owes support misses or is late with two payments within the same calendar year, the program will automatically charge them a default fee. The fee goes to the BC government, not to the support recipient, to help the government cover the costs of operating the program.

Steps the Family Maintenance Enforcement Program can take

To enforce a support order or agreement, the Family Maintenance Enforcement Program can take all legal steps the support recipient could take on their own. The program can also take other steps the recipient cannot, like restricting the driver’s licence of the person who owes support (the “payor”) or taking away their passport.

If support payments are missed and arrears are owed, the enforcement steps the program takes depend on how much arrears are owed, the current situation of the payor, and the actions the program thinks have the best chance of success in the circumstances.

Garnishment

If a support payment isn’t made, the program can intercept a portion of 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. The notice requires that money owed to the payor be redirected to the program (and then sent to the recipient). Institutions that can be attached include employers, banks, and WorkSafeBC. Payments from the federal government, like income tax refunds and Employment Insurance benefits, can also be attached.

Lien against property

The program can file the support order against any property owned by the payor. Doing so means the property cannot be sold or re-mortgaged without the support arrears being dealt with first.

Restricting the payor’s passport or driver’s licence

When a payor has fallen $3,000 or more behind in support payments and all attempts to collect the support in other ways have been unsuccessful, the program can advise the federal government to suspend or deny a payor’s passport. It can also instruct ICBC to refuse to renew a payor’s driver’s licence.

Court enforcement

Ultimately, if the payor still doesn’t pay, the Family Maintenance Enforcement Program 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 — including putting the payor in jail.

Common questions

How successful is the Family Maintenance Enforcement Program in collecting arrears?

In the vast majority of cases, support recipients enrolled in the Family Maintenance Enforcement Program receive some or all of the support that is due each year. However, some payors make it very difficult for the program to collect — even going to the extent of leaving the country to avoid paying support. Others may have no income or assets, or may be receiving income assistance, which means it can take a long time to collect what is owed to recipients. But the Family Maintenance Enforcement Program will continue to pursue payments as long as the support recipient is enrolled with them.

How quickly should I act?

It is always a good idea to be proactive and enroll in the Family Maintenance Enforcement Program if there are problems around support payments. If you are owed support and the party owing you support misses a payment, you should enroll immediately.

Can I take steps on my own while I’m enrolled with the Family Maintenance Enforcement Program?

If you are enrolled with the program, you must contact the program to get permission before taking enforcement action on your own.

Get help

With more information

For more information about the Family Maintenance Enforcement Program, visit their website at fmep.gov.bc.ca. Or call 604-678-5670 in the Lower Mainland, 250-220-4040 in Victoria, or toll-free 1-800-663-3455 elsewhere in BC.

The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, has information on arrears of child support and arrears of spousal support.


[updated March 2018]

The above was last reviewed for legal accuracy by Maintenance Enforcement & Locate Services, Ministry of Attorney General.



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