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 at 604.687.3321 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script explains enforcing court orders and separation agreements that require spousal or child support to be paid.

The reference to “spouse” on this script applies whether you are separated or divorced, so it includes a husband or wife and an ex-husband or ex-wife. It also applies to former common-law spouses and former partners from same-sex gay or lesbian relationships. Also, the word “support” in this script means the same thing as “maintenance.”

A spouse may fail to pay support
A spouse may have to pay support because of a court order or separation agreement. But sometimes they may not pay the spousal and/or child support as required. When that spouse refuses or neglects to pay all or some of the payments, they owe a debt to the spouse who is supposed to get the payments. The money owed is called “arrears.”

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” or submit it to either the Provincial Court or Supreme Court. Once it’s been filed, you can enforce the agreement as if it was a court order.

How do you collect arrears of support or maintenance?
There are two ways. You can:

• Get help from the Family Maintenance Enforcement Program (called FMEP).
• Take your own steps to enforce the arrears.

What is the FMEP?
The Family Maintenance Enforcement Program is a free program funded 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 the 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.

The FMEP assumes responsibility for enforcing your order or agreement
You can get their permission to take some enforcement actions on your own, but once your order or agreement is filed with the FMEP, the program normally enforces 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 an ordinary person cannot do, such as suspending your spouse’s driver’s licence or taking away their passport.

How does the FMEP enforce an order or agreement?
If 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:

• Garnishment: If a payment isn’t made, the program can “garnish” or take the wages of the non-paying spouse to cover the support owed. This is normally the FMEP’s first step. 
  
• Notice of Attachment: The program can issue what’s called a Notice of Attachment against any person or institution that owes money to the non-paying spouse, so the program can receive this money instead. In addition to employers, these institutions include banks, the Workers’ Compensation Board, and the Government of Canada for tax refunds, employment insurance payments and other federal payments or rebates.
  
• Property encumbrance: The program can file support orders against property owned by the non-paying spouse, so that the property cannot be sold or re-mortgaged without the arrears being dealt with first. 
  
• Jail: Ultimately, if your spouse doesn’t pay, the FMEP can request the court to commit them to jail for the non-payment of arrears.

How successful is the FMEP in collecting arrears?
Sometimes the kinds of administrative steps that can be taken aren’t practical or successful, for example, if the non-paying spouse is self-employed. In cases like these, lawyers for the FMEP usually have a hearing in Provincial Court, called a Default Hearing, to see how the non-paying spouse can best pay the support they owe.

You should act promptly
You should register your support order or separation agreement as soon as your spouse first misses a payment or doesn’t pay the full amount owing. It can take about four months to be fully registered with the FMEP. Note that as time goes by, if you don’t take action to enforce arrears, your spouse has a better chance of having the arrears reduced. 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 the FMEP deal with your arrears for you
As mentioned, the program is free and can do all the things you can do, plus more. You can take certain steps yourself to collect the arrears, but the steps are complicated and you have to be careful. If you’ve enrolled in the FMEP, the steps you take might interfere with steps they’re taking and you must get permission from the FMEP to try to collect the arrears yourself.

What steps can you take yourself?
If you decide not to use the FMEP, court orders and filed separation agreements for support can be enforced under the Divorce Act, the Family Relations Act, the Family Maintenance Enforcement Act, and through certain provisions of the rules of the Supreme Court. You can, among other things:

• Apply to garnish your spouse’s wages.
• Apply for an order that some of your spouse’s property be “seized” or taken and sold to pay the arrears.
• Apply for an order to seize certain kinds of bank accounts and RRSPs.

There are also a number of ways you can force your spouse to disclose information about their finances. This may help you figure out how to best collect the arrears. For example, you can require your spouse to:

• Attend a Default Hearing before a judge to produce a statement of their finances.
• Attend what’s called an Examination in Aid of Execution to be questioned under oath about their 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 the FMEP at 604.678.5670 in the Lower Mainland, 250.220.4040 in Victoria or toll-free 1.800.663.3455 elsewhere in BC.

[updated January 2009]

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