Difference between revisions of "Enforcing Support Orders and Agreements"

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{{Dial-A-Law TOC|expanded = family}}
{{Dial-A-Law TOC|expanded = family}}
This script explains the enforcement of court orders and separation agreements that require spousal or child support to be paid.
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.


The references to “spouse” in this script apply to married spouses and unmarried spouses, and to former spouses.
==Understand your legal rights==


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.
===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.


==Support==
Spousal support or child support payments can be set out in a court order or a separation agreement.  
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==
If the party who has to pay support does not do so, the money they owe is called “'''arrears'''” or “arrears of 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==
There are two ways a party who is entitled to support can collect arrears:
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.
#they can take steps themselves to enforce the support order or agreement in court, or
#they can get help from a free government program, the Family Maintenance Enforcement Program.


==How to collect arrears of support?==
===Court orders differ from separation agreements===
There are two ways:
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.  
*get help from the Family Maintenance Enforcement Program; or
*enforce the order or agreement in court.


==What is the Family Maintenance Enforcement Program?==
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.
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?==
===Enforcement steps you can take on your own===
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 [http://www.fmep.gov.bc.ca 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.
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.  


==FMEP assumes responsibility for enforcing the order or agreement==
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:
FMEP will begin to enforce the order or agreement on behalf of the recipient, as soon as all necessary enrollment information is collected.  
*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.


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.
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 does FMEP enforce an order or agreement?==
==How the Family Maintenance Enforcement Program works==
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:
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.
*'''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?==
====Enrolling in the program====
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.
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 [http://www.fmep.gov.bc.ca/ 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.


==It is necessary to act promptly==
====On being enrolled in the program====
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.
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.


==In general, it’s best to let FMEP deal with arrears==  
====Default fee====
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.
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.  


==What steps can the recipient take?==
===Steps the Family Maintenance Enforcement Program can 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:
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.


*apply to garnish the payor’s wages;
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.
*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:
====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.


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


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.
====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.


==More information==
====Restricting the payor’s passport or driver’s licence====  
*For more information about the Family Maintenance Enforcement Program, visit their website at [http://www.fmep.gov.bc.ca/ 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.
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'''.


*The wikibook ''JP Boyd on Family Law'', provided by Courthouse Libraries BC, has information on [http://wiki.clicklaw.bc.ca/index.php/Child_Support_Arrears arrears of child support] and [http://wiki.clicklaw.bc.ca/index.php/Spousal_Support_Arrears arrears of spousal support].
====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 [http://www.fmep.gov.bc.ca/ 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 [http://wiki.clicklaw.bc.ca/index.php/Child_Support_Arrears arrears of child support] and [http://wiki.clicklaw.bc.ca/index.php/Spousal_Support_Arrears arrears of spousal support].


*The laws referred in this script are available at [http://www.bclaws.ca/ www.bclaws.ca] or [http://laws-lois.justice.gc.ca/eng/ http://laws-lois.justice.gc.ca/eng/].




[updated March 2018]
[updated March 2018]


'''The above was last reviewed for accuracy by Victor Liang.'''
'''The above was last reviewed for legal accuracy by [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/justice-services/maintenance-enforcement-locate-services Maintenance Enforcement & Locate Services], Ministry of Attorney General.'''
 
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Revision as of 06:28, 13 February 2019

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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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