Script 132 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3321 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
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 whether you are separated or divorced, and include ex-spouses. It also applies to former unmarried spouses.
The references to “parent” in this script refer to people who are the parents of children and include married spouses and unmarried spouses, as well as people who were never in a married or unmarried spousal relationship.
This script talks about child support, which is paid by spouses and parents, and about spousal support, sometimes called “maintenance” or “alimony,” which is 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 spouse or parent may fail to pay support
A spouse or parent may have to pay support because of a court order or separation agreement but they 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 “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 begin 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, 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.
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 FMEP?
The Family Maintenance Enforcement Program is a free program run by the provincial government. It monitors your 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 if you’re 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
Although you can get FMEP’s permission to take some enforcement actions on your own, once your order or agreement is filed with FMEP, it will enforce the order or agreement on its own. The program can take all the same legal actions that you could take yourself, as well as a lot of other things that you cannot do, like suspending the payor’s driver’s licence or taking away his or her passport.
How does FMEP enforce an order or agreement?
Once your order or agreement is filed with the Family Maintenance Enforcement Program, all support payments must be sent to the program. The FMEP will then send the payments on to you. 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 of 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, the Workers’ Compensation Board and the Government of Canada for tax refunds, Employment Insurance payments and other federal payments or rebates.
- 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 administrative steps that can be taken aren’t practical or successful, for example garnishing wages is the payor is self-employed. 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 are complicated and you have to be careful. 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 seized and sold to pay the arrears; and
- apply for an order to seize certain kinds of bank accounts and RRSPs.
There are also a number of ways you can force the payor to disclose 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 can be complex, 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.
- The laws referred in this script are available at www.bclaws.ca.
[updated March 2013]
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