If your ex has stopped making their child and/ or spousal support payments, you’re not alone. Unfortunately, it’s an issue that comes up quite frequently in family law files. The good news is that the legislation has made provisions to address this very issue. However, these provisions will only apply in situations where you have an existing court order or court filed written agreement for support. They do not apply in situations where there is only a verbal or informal agreement on support. With that said, the first step would therefore be to obtain a court order or written agreement.
For the purposes of this blog, I’m going to assume that you have a court order or written agreement that your ex is not abiding by. In that case you have two broad methods by which to enforce payment.
1. Register with the BC Family Maintenance Agency (formerly known as FMEP)
British Columbia has established a government agency called BC Family Maintenance Agency (BCFMA), which provides afree service to help guardians/spouses collect and enforce child and spousal support orders and filed agreements.
Anyone with a support order or filed agreement can enroll with BCFMA, so long as the payor or the recipient lives in British Columbia and has a valid support order or agreement from Canada (or elsewhere that can be collected by BC).
Enrollment into the program is relatively easy and can be done online or by mail without the help of a lawyer.
Once enrolled, depending on the order/agreement, your ex will have to pay their support directly to BCFMA, who will then pay you. If your ex misses a payment or is late in their payment, they will incur interest and penalties. If your ex falls into significant arrears, BCFMA can take more serious enforcement action, such as:
- Garnishing tax returns;
- Cancelling driver’s license; and
- Denying a federal license or passport.
More information can be found on BCFMA’s website.
While BCFMA is a great free resource, it does have some limitations. For example, BCMFA cannot change an order or agreement for support. In other words, BCFMA can only enforce the terms of the order or agreement that they are provided with. This can be an issue if, for example, someone’s income has changed since the making of the order/agreement or the parenting arrangements have changed.
BCFMA also cannot collect support if the order or agreement doesn’t provide a specific amount due. This issue commonly arises when parties attempt to collect on special or extraordinary expenses. It’s important that your order/agreement has clear terms that BCFMA is able to enforce. If not, registering with BCFMA may be futile. In that case, your next option would be to file in court for enforcement.
2. Apply for a Court Enforcement Order
If you’re not registered with BCFMA or want to proceed independently, you can apply to the BC Provincial or Supreme Court to obtain orders for enforcement. Which court you choose will depend on a number of factors, including where the original order was made or whether your agreement sets out which court has jurisdiction. Be sure to consult with a lawyer to determine which court would be most appropriate for your matter, and to discuss what the court process looks like.
If the court is satisfied that your ex has breached the court order or agreement, the court has the ability to make orders that:
- require them to give security in any form the court directs; and
- require them to pay:
- you for all or part of the expenses reasonably and necessarily incurred as a result of their actions,
- up to $5 000 to or for your benefit or for the benefit of your child(ren) whose interests were affected by their actions, or
- a fine up to a maximum of $5 000.
(See the Family Law Act SBC 2011 Chapter 25 at section 230)
Note, the court declined to make an order for the above relief pursuant to section 230 of the Family Law Act where a support recipient had registered with Family Maintenance Enforcement Program (“FMEP”), as it was then called, and FMEP was taking enforcement steps to recover support arrears.
In some rare cases, the court may order a lump sum child and/or lump sum spousal support payment instead of periodic payments. A lump sum award may be appropriate, for example, where the payor disobeyed previous support orders and had not demonstrated prudent financial management. Keep in mind this is an exceptional remedy in which many factors are to be considered. See for example, Dong v. Liu, 2008 BCSC 1795 at para 54.
With that said, if your order was made outside of British Columbia, you may not be able to proceed with a court application in BC. Before commencing court action, you may wish to speak with a lawyer to ensure that you can proceed with your application in British Columbia.
3. What If the Payor Claims They Can’t Pay or that the level of Support should be Reduced/Cancelled?
A court order or written agreement is binding unless and until the parties agree to vary or set it aside. If you cannot agree on reducing/cancelling support, then your ex has the burden to apply to court to have your order or agreement set aside or varied. They cannot simply stop paying or reduce their payments.
Once in court, your ex has the burden to prove that they cannot pay support or that there has been a material change in circumstances warranting a change in their support obligations. Voluntary unemployment or underemployment will likely not be sufficient to excuse your ex from their obligation to pay support under the Federal Child Support Guidelines. An involuntary loss of employment on the other hand may warrant a change to the other party’s support obligation.
A lawyer can help you assess whether a change in support might be warranted.
Takeaway
Support payments set out in court orders or written agreements are legally binding. If your ex stops paying support, you may wish to take action by:
- Registering with BCFMA, or
- Applying to the court for enforcement
You have the right to ensure support obligations are met for your or your child’s well-being. If you need assistance with enforcing support or in assessing whether or not support should be varied, please feel free to contact our office.
