Difference between revisions of "Enforcing Support Orders and Agreements"

From Clicklaw Wikibooks
Jump to navigation Jump to search
 
(21 intermediate revisions by 3 users not shown)
Line 1: Line 1:
{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [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|date= February 2020}} {{Dial-A-Law TOC|expanded = divorce}}
Many parents and spouses make support payments they owe under a support order or agreement. Unfortunately, some don’t make their payments. Learn what steps to take to enforce payments owed under a support order or agreement.


{{Dial-A-Law TOC|expanded = family}}
{{PLSStorybox
This script explains the enforcement of court orders and separation agreements that require spousal or child support to be paid.
| image = [[File:Irena.png|link=]]
| text      = “After we separated, my partner followed our separation agreement. He paid child support for both children for two years. Then he suddenly stopped paying after he got into a new relationship. I filed my separation agreement in court and registered with the Family Maintenance Enforcement Program. They’ve collected my child support payments for me every month for the last five years — for free.” <br>– Irena, Port Alberni, BC
}}


The references to “spouse” in this script apply to married spouses and unmarried spouses, and to former spouses.
==What you should know==


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.
===Court orders for support are different from agreements===
After separation, one spouse may pay the other '''spousal support''' to help with living expenses. If the couple has children, one parent may pay the other '''child suppor'''t to help with the costs of raising them.


==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==
A '''court order''' for support is a court’s decision that one person (the payor) pay the other person (the recipient) a certain amount, usually on a monthly basis. If support isn’t paid, the recipient can take steps to enforce a court order right away.
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 '''separation agreement''', on the other hand, is a private contract between partners who have separated. 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 it to be enforced as if it were a court order.
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?==
===If child or spousal support is not paid===
There are two ways:
If a payor doesn’t pay support under a court order or agreement, they owe money.
*get help from the Family Maintenance Enforcement Program; or
*enforce the order or agreement in court.


==What is the Family Maintenance Enforcement Program?==
This is called '''arrears''' or '''arrears of support'''.
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?==
There are two ways a recipient can collect arrears. They can:
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.


==FMEP assumes responsibility for enforcing the order or agreement==
# take steps '''themselves''' to enforce the support order or agreement in court, or
FMEP will begin to enforce the order or agreement on behalf of the recipient, as soon as all necessary enrollment information is collected.  
# get help from a '''free''' government program called the Family Maintenance Enforcement Program.


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.
===Taking enforcement steps on your own===
If a payor hasn’t made support payments to you, you have many options to enforce payment. As long as a support order or a separation agreement has been filed in court, some things you can do include:


==How does FMEP enforce an order or agreement?==
* Apply for a court order to '''garnish''' the payor's wages or bank accounts. This means that money from a payor’s wages or bank account is taken and redirected to you. Up to a maximum of 50% of the payor’s wages can be garnished. But, there is no limit on how much money can be garnished from a bank account.
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:
* Apply for an order '''to sell''' some of their property to pay the arrears.
*'''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?==
You can also force the payor to disclose information about their finances. Doing so can help you figure out how to best collect the arrears. For example, you can ask the payor to:
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==
* Attend a '''default hearing'''. This is a court hearing where the payor has to explain why they aren’t paying support. They also have to provide a statement of their finances.
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.
* Attend an '''examination hearing'''. In this court hearing, you can question the payor under oath about their finances.


==In general, it’s best to let FMEP deal with arrears==
For any of these steps, you must apply to court and explain to a judge why the order you’re asking for should be granted. The payor will have a chance to respond.  
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?==
The process of applying to court can be complicated. It’s a good idea to speak with a lawyer first.
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;
===Registering with the Family Maintenance Enforcement Program===
*apply for an order that some of the payor’s property be sold to pay the arrears; and
The Family Maintenance Enforcement Program (FMEP) is a free service provided by the provincial government. FMEP enforces support orders and agreements. The program collects support owed from a payor and sends it to the recipient.
*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:
====How to enroll in the program====
Either a payor or recipient can enroll in FMEP as long as a support order or separation agreement has been filed in court. [http://www.fmep.gov.bc.ca/ The enrollment package is online]. Or you can request that FMEP mail you the package.


*attend a default hearing before a judge and produce a statement of his or her finances; or
====After you’re enrolled in the program====
*attend a hearing in the Supreme Court called an Examination in Aid of Execution to be questioned under oath about his or her finances.
Once a case is enrolled, the payor sends all support payments to the program. FMEP processes them and then sends them on to the recipient. It tracks when payments are due, and how and when payments are made. If a payor misses payments and arrears add up, there are several steps FMEP can take. We explain this shortly.


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.
To withdraw from the program, the person who enrolled the support order or agreement with FMEP needs to send a request in writing.


==More information==
If it was the recipient who enrolled, they can withdraw at any time. If it was the payor who enrolled, the recipient has to agree to the payor’s withdrawal from the program.
*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.


*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].
{| class="wikitable"
|align="left"|'''Changes to the order or agreement'''
After enrollment, a payor or recipient may want to '''change''' the support order or agreement. If they start any negotiations or legal action to make a change, they must let FMEP know.
|}


*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/].
===What enforcement steps FMEP 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 — and more. For example, it can cancel the payor’s driver’s licence or take away their passport. We explain several steps here. [https://www.fmep.gov.bc.ca/paying-or-receiving-maintenance/enforcement-actions/ See the FMEP website for a full list of enforcement steps the program can take].


If support payments are missed and arrears are owed, the enforcement steps the program can take depend on:


[updated March 2018]
* how much money is owed,
* the current situation of the payor, and
* the actions the program thinks have the best chance of success in the circumstances.


'''The above was last reviewed for accuracy by Victor Liang.'''
====Notice of attachment====
----
FMEP can issue a '''notice of attachment''' to any person or institution that owes money to the payor. The notice requires that the funds be redirected to the recipient through the program. Sources that can be attached include employers, banks, and WorkSafeBC. Federal government payments — such as income tax refunds and Employment Insurance benefits — can also be attached.


====Lien against property====
FMEP can file the support order against any property (whether a car, manufactured home, or land) owned by the payor. Doing so means the property can’t be sold or re-mortgaged without the support arrears being dealt with first.
====Cancel driver’s licence or suspend passport====
When a payor falls $3,000 or more behind in support payments and FMEP has been unable to collect the support, it can:
* ask the federal government to '''suspend or deny''' a payor’s passport
* tell ICBC to:
** '''cancel''' a payor’s current driver’s licence
** '''refuse to renew''' a payor’s driver’s licence
** '''refuse to give or renew''' a payor’s [https://www.icbc.com/vehicle-registration/buy-vehicle/Pages/Registering-a-vehicle-in-B-C-.aspx motor vehicle licence] (without a vehicle licence, a payor can’t buy vehicle insurance)
These are serious steps. FMEP takes them only after having tried unsuccessfully to collect the support payments in other ways.
====Court enforcement====
Ultimately, if a payor still doesn’t pay, FMEP can bring the case to court. In court, the payor has to explain why they didn’t pay support. The court can decide to take further action to enforce payment of the arrears — including putting the payor in jail.
==Common questions==
===How successful is FMEP in collecting arrears?===
In most cases, support recipients enrolled with the program get some or all of the support that is due to them each year. However, some payors make it very difficult for FMEP to collect — even leaving the country to avoid paying support. Others may have no income or assets, or may be receiving income assistance. So it can take a long time to collect what’s owed to recipients. But FMEP will continue to pursue payments as long as the support recipient is enrolled with them.
===When should I enroll with FMEP?===
It’s always a good idea to be proactive and enroll with the program if there are problems around support payments. If you’re a support recipient and the payor misses a payment, you should enroll immediately.
===Can I take enforcement steps on my own while I’m enrolled with FMEP?===
No. You need to contact the program to get permission '''before''' you can take enforcement action on your own.
==Who can help==
===With more information===
The '''Family Maintenance Enforcement Program''' website explains how to enroll in the program. It also has information about the steps FMEP can take to enforce a support order or agreement. FMEP also has three client offices throughout BC.
* [https://www.fmep.gov.bc.ca/ Visit website]
The '''BC government''' website has information about enforcing a support order or agreement through FMEP.
* [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-maintenance-enforcement-program Visit website]
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 [https://wiki.clicklaw.bc.ca/index.php/Spousal_Support_Arrears arrears of spousal support]. It also has information about enforcing child and spousal support orders.
* [[Enforcing Orders in Family Matters|Visit website]]
===Free and low-cost legal help===
Options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].
{{Dial-A-Law_Navbox|type=families}}
{{Dial-A-Law Copyright}}
{{Dial-A-Law Copyright}}
{{Dial-A-Law_Navbox|type=family}}

Latest revision as of 20:55, 25 September 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Maintenance Enforcement & Locate Services, Ministry of Attorney General in February 2020.
Dial-A-Law
Dial-A-Law‎
This page is
from Dial-A-Law‎,
a starting point for
information on the law
in British Columbia.
See the full contents.
About
Introduction
Consumer & Money
Work & Business
Families & Children
Divorce & Separation
 · Separation & Separation Agreements

 · Deciding Who Will Move Out

 · Requirements for Divorce & Annulment

 · Desk Order Divorce

 · Responding to Divorce Proceedings

 · Guardianship & Parenting Arrangements

 · Child Support

 · Spousal Support

 · Enforcing Support Orders & Agreements

 · Tax Implications of Support Payments

 · Dividing Property & Debts
Life
Courts & Crime
From
Visit more from People's Law School
People's Law School
v • d • e

Many parents and spouses make support payments they owe under a support order or agreement. Unfortunately, some don’t make their payments. Learn what steps to take to enforce payments owed under a support order or agreement.

Irena.png
“After we separated, my partner followed our separation agreement. He paid child support for both children for two years. Then he suddenly stopped paying after he got into a new relationship. I filed my separation agreement in court and registered with the Family Maintenance Enforcement Program. They’ve collected my child support payments for me every month for the last five years — for free.”
– Irena, Port Alberni, BC

What you should know

Court orders for support are different from agreements

After separation, one spouse may pay the other spousal support to help with living expenses. If the couple has children, one parent may pay the other child support to help with the costs of raising them.

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

A court order for support is a court’s decision that one person (the payor) pay the other person (the recipient) a certain amount, usually on a monthly basis. If support isn’t paid, the recipient can take steps to enforce a court order right away.

A separation agreement, on the other hand, is a private contract between partners who have separated. 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 it to be enforced as if it were a court order.

If child or spousal support is not paid

If a payor doesn’t pay support under a court order or agreement, they owe money.

This is called arrears or arrears of support.

There are two ways a recipient can collect arrears. They can:

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

Taking enforcement steps on your own

If a payor hasn’t made support payments to you, you have many options to enforce payment. As long as a support order or a separation agreement has been filed in court, some things you can do include:

  • Apply for a court order to garnish the payor's wages or bank accounts. This means that money from a payor’s wages or bank account is taken and redirected to you. Up to a maximum of 50% of the payor’s wages can be garnished. But, there is no limit on how much money can be garnished from a bank account.
  • Apply for an order to sell some of their property to pay the arrears.

You can also force the payor to disclose information about their finances. Doing so can help you figure out how to best collect the arrears. For example, you can ask the payor to:

  • Attend a default hearing. This is a court hearing where the payor has to explain why they aren’t paying support. They also have to provide a statement of their finances.
  • Attend an examination hearing. In this court hearing, you can question the payor under oath about their finances.

For any of these steps, you must apply to court and explain to a judge why the order you’re asking for should be granted. The payor will have a chance to respond.

The process of applying to court can be complicated. It’s a good idea to speak with a lawyer first.

Registering with the Family Maintenance Enforcement Program

The Family Maintenance Enforcement Program (FMEP) is a free service provided by the provincial government. FMEP enforces support orders and agreements. The program collects support owed from a payor and sends it to the recipient.

How to enroll in the program

Either a payor or recipient can enroll in FMEP as long as a support order or separation agreement has been filed in court. The enrollment package is online. Or you can request that FMEP mail you the package.

After you’re enrolled in the program

Once a case is enrolled, the payor sends all support payments to the program. FMEP processes them and then sends them on to the recipient. It tracks when payments are due, and how and when payments are made. If a payor misses payments and arrears add up, there are several steps FMEP can take. We explain this shortly.

To withdraw from the program, the person who enrolled the support order or agreement with FMEP needs to send a request in writing.

If it was the recipient who enrolled, they can withdraw at any time. If it was the payor who enrolled, the recipient has to agree to the payor’s withdrawal from the program.

Changes to the order or agreement

After enrollment, a payor or recipient may want to change the support order or agreement. If they start any negotiations or legal action to make a change, they must let FMEP know.

What enforcement steps FMEP 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 — and more. For example, it can cancel the payor’s driver’s licence or take away their passport. We explain several steps here. See the FMEP website for a full list of enforcement steps the program can take.

If support payments are missed and arrears are owed, the enforcement steps the program can take depend on:

  • how much money is owed,
  • the current situation of the payor, and
  • the actions the program thinks have the best chance of success in the circumstances.

Notice of attachment

FMEP can issue a notice of attachment to any person or institution that owes money to the payor. The notice requires that the funds be redirected to the recipient through the program. Sources that can be attached include employers, banks, and WorkSafeBC. Federal government payments — such as income tax refunds and Employment Insurance benefits — can also be attached.

Lien against property

FMEP can file the support order against any property (whether a car, manufactured home, or land) owned by the payor. Doing so means the property can’t be sold or re-mortgaged without the support arrears being dealt with first.

Cancel driver’s licence or suspend passport

When a payor falls $3,000 or more behind in support payments and FMEP has been unable to collect the support, it can:

  • ask the federal government to suspend or deny a payor’s passport
  • tell ICBC to:
    • cancel a payor’s current driver’s licence
    • refuse to renew a payor’s driver’s licence
    • refuse to give or renew a payor’s motor vehicle licence (without a vehicle licence, a payor can’t buy vehicle insurance)

These are serious steps. FMEP takes them only after having tried unsuccessfully to collect the support payments in other ways.

Court enforcement

Ultimately, if a payor still doesn’t pay, FMEP can bring the case to court. In court, the payor has to explain why they didn’t pay support. The court can decide to take further action to enforce payment of the arrears — including putting the payor in jail.

Common questions

How successful is FMEP in collecting arrears?

In most cases, support recipients enrolled with the program get some or all of the support that is due to them each year. However, some payors make it very difficult for FMEP to collect — even leaving the country to avoid paying support. Others may have no income or assets, or may be receiving income assistance. So it can take a long time to collect what’s owed to recipients. But FMEP will continue to pursue payments as long as the support recipient is enrolled with them.

When should I enroll with FMEP?

It’s always a good idea to be proactive and enroll with the program if there are problems around support payments. If you’re a support recipient and the payor misses a payment, you should enroll immediately.

Can I take enforcement steps on my own while I’m enrolled with FMEP?

No. You need to contact the program to get permission before you can take enforcement action on your own.

Who can help

With more information

The Family Maintenance Enforcement Program website explains how to enroll in the program. It also has information about the steps FMEP can take to enforce a support order or agreement. FMEP also has three client offices throughout BC.

The BC government website has information about enforcing a support order or agreement through FMEP.

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

Free and low-cost legal help

Options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

v • d • e
 
Families & Children
Family Relationships
Divorce & Separation
Children
Resolving Family Disputes
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.


Retrieved from "https://stagewiki.clicklaw.bc.ca/index.php?title=Enforcing_Support_Orders_and_Agreements&oldid=56979"