Many family law matters go forward with an order from the court through litigation or an agreement between the parties. This can be a vital step for the party or parties in moving on with their lives. However, whether or not the terms of an order or agreement are followed is another matter. Most people are content to abide by whatever formal arrangements are in place. Such arrangements in Family Law can last for years without issue or breach by one of the parties.
In those cases where someone fails to honour obligations, steps must be taken to secure compliance and enforce the order or agreement.
This article will provide a brief comment on the enforcement of orders generally, discuss the enforcement of orders for spousal and child support, and the role of The Alberta’s Maintenance Enforcement Program (MEP) in this regard.
The Judge hears the claims of the Applicant (Plaintiff) and the defences of the Respondent (Defendant). The Court is then tasked with making a fair and proper decision in the circumstances of each case. A common misconception about Court Orders is that the Court will monitor its own decisions, which does not happen. That’s up to you. The Judge’s decision is a Court Order. It is binding on the parties and they risk being held in contempt of court if they act contrary to that decision. Once that decision is made, however, the Court’s job is over and it is each party’s responsibility to see to it that the Order is followed. The Court is not responsible for supervising its own Orders or to make sure parties obey each term of every order. If one of the parties is not abiding by the terms of an Order, then it is up to the other party to take action. This may include asking the Court to find the opposing party in contempt. Both parties have the same rights of enforcement. Legal counsel can assist you in ensuring that your Court Orders are properly enforced.
When a person obliged to pay child support or spousal support stops making those payments, a debt begins to accumulate in favour of the recipient. This debt is known as the payor’s arrears of support.
Orders made under the federal Divorce Act can be enforced in Alberta and in any other province. They may also be enforceable outside of Canada, depending on whether the jurisdiction in which the order is to be enforced has an agreement with the federal government about the mutual enforcement of support orders.
Orders made under the provincial Family Law Act can be enforced in Alberta, and in other provinces, when they are registered or filed in court under the province’s legislation on family law, usually the Interjurisdictional Support Orders Act.. They can also be enforceable outside of Canada, depending on whether the jurisdiction in which the order is to be enforced has an agreement with the federal government about the mutual enforcement of support orders.
A separation agreement is the written document describing how a couple has settled their issues arising from the end of their relationship, and can include such matters as:
The website of the Federal Department of Justice has a helpful overview of support enforcement mechanisms in Canada.
The Family Law Act and the Divorce Act allow written agreements dealing with custody or access to a child and/or child or spousal support to be filed in an Alberta Court. In this case,
Once the agreement has been filed in court, either party may seek to enforce access, custody or support provisions as if those provisions were contained in a court order. This includes enforcement by MEP in the case of agreements about child support and spousal support, and applications for a finding of contempt of court.
MEP is a government service which monitors payments as they are made or not made, and calculates the interest accumulating on any arrears. It is a free service.
MEP will enforce the provisions of support orders which are registered with the program, as well as the support provisions of family law agreements filed in court. MEP can take all the steps a private debtor can to collect on any outstanding arrears and will supervise monthly payments. There is no cost to register with MEP and you do not need to hire a lawyer to have MEP get to work on your behalf.
MEP has extremely long arms and the steps it can take to compel payment are substantial, including:
Parties can chose to either enforce their order via MEP or decide to enforce the order on their own. Once registered with MEP a party will lose the right to enforce the order on their own, unless that party withdraws from MEP. While it is possible to enforce a court order without MEP, it can be more costly. These options should be discussed with an experienced lawyer.
Some countries have agreements with Canada and Alberta that they will respect and enforce each other’s court orders, or a provision in their family law legislation which is similar to our Family Law Act and allows Alberta orders to be registered in their courts for enforcement purposes. Under our legislation, extra provincial and foreign orders registered with our courts are treated as if they were orders of our courts and can be enforced accordingly.
Some countries do not have reciprocal agreements with Canada and Alberta and may not have family law legislation similar to our Alberta legislation. You may have no choice but to commence a proceeding abroad in these countries to obtain a new order on the terms of the Alberta order. All courts pay a great deal of deference to the orders other courts have made, and the Alberta order should be very persuasive to another court unless the Alberta order was obtained by fraud, misrepresentation or in the face of foreign proceedings concerning the child.
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