H. Enforcement by Provincial Agencies

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 457-463

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One problem that has plagued Canadian law over many years is the degree to which court orders for spousal and child support fall into default. The enforcement of support orders, even those granted in divorce, is primarily regulated by provincial and territorial legislation. Provincial and territorial automatic enforcement processes have been established whereby the enforcement of orders is no longer left to the spouses or parents to whom the money is payable. Orders for support are now registerable with provincial or territorial agencies which monitor the payments and take any necessary steps to enforce orders that have fallen into default.⁴³Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, and Quebec have adopted an automatic or "opt-out" registration and enforcement system whereby maintenance orders are automatically filed with a maintenance enforcement program at the time of the order. A support recipient may ask to be withdrawn from the program but the payor usually has to agree to the withdrawal and the request can be denied if the recipient is receiving social assistance. Alberta, British Columbia, Prince Edward Island, Saskatchewan, the Yukon, the Northwest Territories, and Nunavut have an "opt-in" program whereby registration is at the option of either the recipient or payor. An exception arises in cases where the recipient is eligible for social assistance, in which event enrolment in the maintenance enforcement program is mandatory.⁴⁴As an alternative to

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court applications for variation, Alberta, Manitoba, Newfoundland and Labrador,⁴⁵and Prince Edward Island provide a recalculation service which facilitates a regular administrative review,usually annually, of the payor’s financial circumstances and possible recalculation of the payment terms in the order, without going to court.⁴⁶

In Alberta, pursuant to Division 1.1 of the Family Law Act,⁴⁷ if a parent fails to provide the required documentation, the amount of child support under an existing order or binding agreement will be automatically recalculated for the first year as if the payor’s income had increased by ten percent. A further three percent will be added for each additional year the order was granted or recalculated. The maximum deemed income increase is 25 percent and is applied to orders where five or more years have passed since the parental income levels were determined. Pursuant to section 55.51 (4) of the Family Law Act, where a payor or a recipient fails to provide the recalculation program with income information in respect of a child support order made under the Divorce Act (Canada), the Director of the Child Support Recalculation Program may apply to the court on such notice as the court may direct for an order respecting the determination of the income of the payor or the recipient for the purposes of a recalculation of child support.⁴⁸ The Alberta program has no discretion to consider individual circumstances or to conduct an analysis of business expenses that have not been challenged by the Canada Revenue Agency. The Government of Alberta, Child Support Recalculation Program, Information Sheet states:

Self-employed people can be eligible for certain benefits and income tax deductions that salaried employees are not. Depending on the type and extent of courts may add some of those benefits or deductions back into the calculation when deciding on the self-employed person’s income for child support purposes. self-employment income, To make this decision, Judges can do a comprehensive review of the self-employed party’s finances, examining business and personal financial documents and questioning the party of those documents. Since these reviews involve investigation and discretion, they are not suitable for an administrative recalculation program like RP. Unlike a court, RP cannot use discretion to take into account each person’s particular situation. RP has a simple, administrative process that recalculates child support based on Line 150 of the parent’s filed income tax return as assessed by Revenue Canada. There is a risk that in self-employment situations, tax documents may show less income than is actually available for child support purposes.⁴⁹

In Alberta, child support orders must be paid through the Director of Maintenance Enforcement, unless the recipient withdraws from the program.⁵⁰The practice of the Director of Maintenance Enforcement, whereby a support obligor’s compliance with a voluntary payment plan relieves him from the risk of full execution on arrears, has been judicially endorsed in Alberta. However, this concession is only justifiable where the child support obligor makes voluntary payments that do not require the Director to undertake proced-

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ures by way of support deduction notices (formerly called garnishees) which would trigger additional administrative costs.⁵¹The British Columbia Supreme Court has only limited authority to intervene with respect to procedures invoked by the Director of the Family Maintenance Enforcement Program to enforce a parent’s child support obligations by (1) preventing the issue of a driving licence; (2) reporting his indebtedness to the Credit Bureau; (3) registering a lien against his personal property; and (4) filing notices of attachment with the federal government. Judicial intervention is inappropriate where the defaulter’s lack of income is due to a refusal to work, rather than an inability to work.⁵²Court orders exist and are enforceable until such time as they are varied or terminated by the court. The Family Maintenance Enforcement Program of British Columbia has no authority to give legal advice to people as to the effect of court orders and the obligations thereby imposed. Whether an adult child remains a child of the marriage entitled to support is a matter to be resolved by a court, not by the provincial enforcement agency.⁵³Part VI of The Family Maintenance Act (Manitoba), entitled "Enforcement of Maintenance Orders," empowers a designated officer of the Enforcement Branch to initiate various types of proceedings to enforce support obligations that are in default. In Daniels v. Daniels,⁵⁴ Schulman J., of the Manitoba Court of Queen’s Bench, reviewed various statutory provisions and enforcement processes before concluding that monies payable to a support defaulter who is entitled to receive funds under the Indian Residential Schools Settlement may be accessed by the Enforcement Branch pursuant to a court order for the appointment of a receiver. The order for the appointment of the receiver was appealed by Daniels and by the Attorney General of Canada.⁵⁵ The Manitoba Court of Appeal held that the receiver order did not offend the terms of the class action settlement and that the supervising judge had "exercised his discretion judicially and for the purpose of securing a just and expeditious resolution of the issues related to the enforcement of Daniels’ arrears of child support."⁵⁶

Furthermore, Daniels could not successfully challenge the order on the basis of either section 88 or 89 of the Indian Act,⁵⁷ in circumstances where the payments were pursuant to a settlement agreement rather than federal legislation and both Daniels and his wife were status Indians. With respect to...