Child Support Enforcement How and Why

Why to Enforce

Once you have a child support order, you should enforce it. This might sound obvious, but there are some people who do not. I'm not sure why: perhaps the recipient knows that the payor parent is in a bad financial situation, perhaps they have some arrangement to the contrary, perhaps the kids have switched homes, perhaps there is a threat of abuse, etc. Whatever the reason, enabling non-payment or under-payment is ultimately problematic in the long run.

In my practice, I meet with both the people who have failed to enforce or update child support orders and the people who have failed to pay.

The ones who have failed to collect or to collect the right amount over the years, are told that if the payor's income has increased, the law allows them to apply to vary the ongoing child support and to receive the difference between what has been paid in previous years and what should have been paid (we call that a retroactive adjustment).

For everyone lucky enough to hear that they might be able to receive this helpful adjustment/windfall, someone else is about to learn that they suddenly owe a back debt of child support. And sometimes these debts can be substantial. So enforcement and regular adjustments simplify everything and avoid accumulated arrears/retroactive debt. Most people, particularly with the benefit of hindsight, would have found a small adjustment to have been easier then a massive adjusting payment years later. For this reason, early enforcement is best.

I can advise from experience that retroactive applications can be costly to both parties. While at first blush, it may seem like a simple task to calculate the support retroactively, it can be quite difficult to gather the evidence and work out the calculation. This becomes particularly complex when a lot of time has passed, when the payor is self-employed, when the situation is complicated, and when the payor resists (which is often). Additionally, there are some defences to retroactive applications which should be anticipated and addressed when preparing to apply for retroactive child support. These applications contain risk to both parties, which is costly in terms of mounting the best application, as well as in anxiety and stress. So, again, early enforcement and regular updates are best. Or, if it is not possible to expect the payor to pay for legitimate reasons, then the child support order should be varied to a lower amount and enforced (courts rarely waive unpaid child support.)

How to Enforce

Once you have a child support order in place, you can take steps to enforce payment. The easiest way to seek enforcement is to register your child support order with the Alberta Maintenance Enforcement Program. MEP has the power to garnishee wages, to cancel the payor's driver's licence, to impose interest and penalties, to garnishee tax refunds and to prevent a person from obtaining a fishing or hunting licence. In rare circumstances, the power can extend to more serious penalties such as jail time. Anyone registering with MEP is invited to report any outstanding payments so that MEP can enforce those amounts plus the ongoing payments. Overall MEP can put a lot of pressure on a person to pay their child support. Most people end up wishing they had just paid in the first place, particularly when substantial arrears are involved.

The law has become increasingly clear with respect to the need to pay the correct amount based on current earnings, even if a court order or agreement is in place to pay a lesser amount. In order to help recipient parents receive the correct amount of support, the Alberta government started the Maintenance Recalculation Program in January 2010. This is designed to adjust child support annually for those cases in which annually income can be determined fairly easily (i.e. for employees, but probably not for business owners).

It is generally best to take steps to increase support annually. If payors fail to increase payments, they risk owing the accumulated difference between what is being paid and what should have been paid. For those who receive child support, they should be vigilant in seeking updated financial disclosure and ensuring that child support is updated annually (this may include registering for the recalculation program.)