What do I do if my ex-spouse is not paying support?
When a spouse or parent stops paying the support, either in full or part, he or she accumulates a debt to the person who is supposed to get the payments. The money owed is called the “arrears” or “arrears of support”. It does not matter whether the amount of support was agreed upon in a settlement arrangement or ordered by a court, it is legally owed the other spouse and the debt is enforceable by the following laws:
- The Divorce Act
- The Family Relations Act
- The Family Maintenance Enforcement Act
- The Family Orders and Agreements Enforcement Assistance Act
- The Rules of Court
- Or under a Court’s equitable or inherent jurisdiction
The Interjurisdictional Support Orders Act also allows for international enforcement.
How to collect support money that is in arrears…
Collecting the money owed under a child (or spousal) support order has been a significant problem in family law in the past. Although there are provisions in the Divorce Act and the Family Relations Act that may be used to initiate a court proceeding, this is often not an option for individuals who already have very busy lives. In recognition of this, steps have been taken to make the process easier. Federally, the Family Orders and Agreements Enforcement Assistance Act provides for arrangements between the federal government and the provinces to
- Search certain federal information banks to help find paying parents who have not complied with their order or agreement;
- Allow for the garnishment of wages
- Seize federal money (ie. income–tax refunds and Employment Insurance benefits owed to a support payer) and use the money seized to pay a support debt; and
- Deny passports and certain federal licences to payers who persistently fail to make their support payments.
Procedures have also been set up in BC to try to make accessing unpaid support money less strenuous. The BC Family Maintenance Enforcement Act (FMEP) allows a party seeking to enforce an order to file their case with the Director of Maintenance and Enforcement, who will then take charge of enforcing the order.
FMEP monitors and enforces court orders and agreements for child and spousal support. These programs have been proven to assist individuals in receiving full payments on time. They also track the payments. If payments are not made, they contact the payor to try to get payment voluntarily and develop a plan for paying the arrears.
If enforcement is necessary, the federal and provincial laws discussed above gives FMEP the authority to use a number of measures such as:
- Garnishment for wages or bank accounts or federal payments such as EI benefits and income tax returns
- Land Registration (lien against real estate)
- Maintenance Lien (against personal property)
- Reporting to the Credit Bureau
- Drivers Licence Withholding
- Federal Licence and Passport Denial
The FMEP also charges interest on late and unpaid maintenance, which goes to the recipient.
How successful is FMEP in collecting arrears?
There are some circumstances when remedial actions available to FMEP are not practical or successful. For example, garnishing the wages of a self-employed payor may not be sufficient. In cases like these, lawyers for FMEP usually have a hearing in court to see how the payor can meet his or her support obligation and begin to pay down the arrears.
 Family Orders and Agreements Enforcement Assistance Act, RSC 1985, c 4 (2nd Supp).
 Family Maintenance Enforcement Act, RSBC 1996, c 127.
 Canadian Bar Association, “Enforcing Orders and Agreements for Support” Available at: http://www.cba.org/bc/public_media/family/132.aspx.