How can the Court help you collect child or spousal support payments that have been ordered but not paid to you? And how can it help if you’re a payor whose circumstances have changed so you’re simply not able to pay? This eNews article has information both for people who have been ordered by a court to pay maintenance to contribute to the support of a child or spouse (payors) and for people entitled to receive those payments (recipients).
Registering a maintenance order
If someone has been ordered to pay you maintenance (financial support) for yourself (spousal maintenance) or a child you can register your court order with the Family Maintenance Enforcement Program (FMEP). Then, if support isn`t paid, FMEP will take action to enforce the order and collect the money you are owed. FMEP is a free, voluntary program that monitors and enforces maintenance orders. If you don`t register your order, you may still take steps to enforce your order, but you won`t have as many remedies available as FMEP does.
Court action to collect unpaid maintenance
When the Provincial Court is asked to enforce arrears (collect unpaid maintenance payments) owing under a child or spousal support order, most cases will involve the BC Family Maintenance Enforcement Act. The most common forms of enforcement action taken under this Act in Provincial Court are the default hearing and the committal hearing.
At a default hearing the FMEP or recipient must first prove the amount of arrears that are owing. Then the payor must give evidence about their finances to prove that they are not able to pay all the arrears at once. If a payor can show this, the judge will consider what they can or should be able to pay, and usually order them to pay a certain amount towards the arrears each month on top of ongoing support payments.
In some circumstances a judge will also order that a payor may be imprisoned for up to 90 days for each missed payment. However, committal to jail is usually not automatic when a payment is missed. Instead, it is decided in a second hearing, called a “committal hearing”.
A committal hearing is held when a payor fails to make arrears payments required by a court order and the order provides jail time for any missed payment. Unless the payor satisfies the judge that:
- they have made the missed payments; or
- a change of circumstances since the order was made makes them unable to pay; or
- imprisoning them would be a grave injustice;
the judge must order their imprisonment. Being sent (committed) to jail does not mean that payment of the maintenance is excused, however. Ongoing monthly support and arrears payments must still be paid.
While it would be helpful to talk to a lawyer about any problems you may be having with a support order, you should certainly consult a lawyer or the Family Court duty counsel if you are unable to pay arrears or have been summonsed to a committal hearing.
Changing the maintenance order
||If you are a payor whose circumstances have worsened since you were ordered to pay support in Provincial Court and you can’t pay for a good reason, you may wish to ask a judge to change or cancel the maintenance order and/or to cancel or reduce maintenance arrears that have built up. To do this, you file a form called an Application Respecting Existing Orders or Agreements and a sworn Financial Statement with supporting financial records such as tax returns and bank statements. You must deliver (serve) copies of these documents to the person to whom support must be paid and to FMEP.|
If your maintenance order was made by a BC Supreme Court judge, you have to apply in that court to change your order.
Be aware that the law says support orders can be changed if changed circumstances justify it, but that arrears can only be reduced or cancelled if it would be “grossly unfair not to do so”. It is therefore important to apply to change an order if you are truly unable to pay for an extended period rather than ignore it and let arrears mount up.
FMEP enforcement action outside court
The Act gives FMEP the power to take steps outside court to enforce payment of maintenance orders. FMEP can attach (garnish) wages or other money owed to a payor, prevent the payor from renewing their driver’s licence or motor vehicle licence, prevent them from obtaining a passport, or register a charge on land they own.
Challenging FMEP enforcement actions
If you are a maintenance payor and you have issues with enforcement actions taken outside court by FMEP, you may be able to ask a judge to review those actions.
In most cases, your first step is to contact FMEP to explain your circumstances, ask them to change their enforcement actions, and provide any financial or medical documents they may request. The Act specifically requires that you first contact FMEP to request a release of any hold on your driver’s licence or motor vehicle licence, the setting aside of a notice of attachment, or a change in the amount being taken by a notice of attachment. If you haven`t done this the Court will likely not be able to deal with your case.
In fact, it is always a good idea to contact your FMEP enforcement officer before going to court because you may be able to reach an agreement without having to go to court.
If you can`t reach an agreement with FMEP, then you can apply to court to challenge certain FMEP enforcement actions by filing a Notice of Motion in Maintenance Enforcement Proceedings, and delivering a copy of your Notice to FMEP. In some cases, you will need to support your application with a Statement of Finances form, plus the supporting financial documents listed on page 1 of the form.
The Statement of Finances must be sworn to be true before a lawyer, notary or a commissioner for taking affidavits. This can be done at a court registry as long as you provide proper picture identification. You can deliver your application on FMEP by fax or mail. Contact FMEP to get their fax number or mailing address.
An application to challenge FMEP enforcement actions can be made in Provincial Court even if the maintenance order was made by the Supreme Court. However, the Provincial Court does not have the power to interfere with certain forms of FMEP enforcement. For instance, if FMEP is blocking your application for a passport you can only challenge their action using a special application (called “judicial review”) in the Supreme Court of BC. You should get legal advice for help with such an application because it is complicated.
Remember that a challenge of FMEP enforcement action does not mean that the maintenance order will be changed, so if you want your order changed you must also file the Application Respecting Existing Orders or Agreements.
More information and help
This eNews article provides general information about the law but each person’s situation is different. You should talk to a lawyer to get legal advice about your own circumstances. These resources can help you find free or low cost legal advice if you cannot afford a lawyer.
Clicklaw Helpmap – find people who can help with legal problems in BC
Family Court Duty Counsel – find out what they do & who they can help
Family Court Forms – see the forms mentioned in this article