Enforcing Support Orders and Agreements

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” in this script refer to anyone who is the parent of a child, including married spouses and unmarried spouses, as well as people who were never in a spousal relationship at all.

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.

A payor may fail to pay support

A spouse or parent may have to pay support because of a court order or separation agreement, but 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 you 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, you must first file the agreement in court. Separation agreements can be 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 you can take steps to enforce it right away.

How do you collect arrears of support?

There are two ways. You can:

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

What is the Family Maintenance Enforcement Program?

The Family Maintenance Enforcement Program, or 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 you for the services of this program.

How do you enroll in FMEP?

Any person who has a support order or separation agreement filed in court can enroll. You can get the application form and information about the program by calling 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 your phone directory under “Family Maintenance Enforcement Program”.

FMEP assumes responsibility for enforcing your order or agreement

FMEP will begin to enforce your order or agreement within about four months of the date you enrolled in the program. FMEP manages its enforcement procedures with little or no involvement on your part. You can take steps to enforcement your order or agreement on your own after you’ve enrolled, however you must get FMEP’s permission first.

It is often best to left FMEP handle things once you’ve enrolled. The program can take all the same legal actions that you could take yourself, as well as a lot of other actions that you can’t, like suspending the payor’s driver’s licence or taking away his or her passport.

How does FMEP enforce an order or agreement?

Once you have enrolled in the Family Maintenance Enforcement Program, all support payments must be sent to the program. The FMEP will then send the payments on to you. 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.

You should act promptly

You should register your 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. If you have arrears owing under an old court order or separation agreement, you should talk to a lawyer, because collecting on old orders or agreements can sometimes be difficult.

In general, it’s best to let FMEP deal with your arrears for you FMEP is free and can do all the things you can do to enforce a support obligation and more. You can take certain steps yourself to collect the arrears, but those steps can be complicated. If you’ve enrolled in FMEP, the steps you take might interfere with steps they’re taking; you must also get permission from FMEP to try to collect the arrears yourself.

What steps can you take yourself?

If you decide 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. You 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 you can force the payor to provide information about his or her finances. This may help you figure out how to best collect the arrears. For example, you 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.

However you proceed, you’ll have to make a court application and explain to a judge why you should get the help you want. Because the court application process can be complicated, it’s a good idea to speak to a lawyer first.

Where can you get more information?

• For more information about the Family Maintenance Enforcement Program, see 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.
• You can also see the pages in the wikibook JP Boyd on Family Law, provided by Courthouse Libraries BC, on Child Support Arrears and Spousal Support Arrears.
• The laws referred in this script are available at www.bclaws.ca.

[updated October 2014]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

In family law, an antiquated term referring to child support and spousal support. See "child support" and "spousal support."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

A contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another into the future. A typical separation agreement is signed following a settlement reached through negotiation and deals with issues including guardianship, parenting arrangements, contact, support, the division of property, and the division of debt. See "family law agreements."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

Child support or spousal support that is owing because of an order or agreement but is unpaid.

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A term under the Divorce Act referring to an order for child support or spousal support. See "child support" and "spousal support."

Something which can be owned. See "chattels" and "real property."

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

A duty, whether contractual, moral, or legal in origin, to do or not do something. See "duty."

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

In law, a guarantee of the truth of a statement secured by one's faith in a god, and the prospect of torment in the afterlife in the event the promise is falsely made. People making affidavits and giving oral evidence in court will often give their evidence under oath. See "affidavit," "affirm," "perjury" and "witness."