Does failure to pay child support lead to jail time?

Camille Boyer, Calgary Family Lawyer

At Crossroads Law, we often receive inquiries from parents owed child support and wanting help to ensure child support is paid. Generally, the first step is to register the Court Order with the Maintenance Enforcement Program (“MEP”). MEP is a government organization in Alberta that assists with collection and enforcement of Court Orders for support. MEP can take a number of collection actions on behalf of a recipient, including garnishment of the payor’s wages and suspension of their driver’s license or passport.

Sadly, MEP is often unable to effectively collect child support payments that are owed. According to a 2019 report, MEP had 35,434 parents seeking assistance with enforcing their arrangements. In total, Albertans owe approximately $609 million in partner support, spousal support, and child support payments.

In some circumstances, particularly as we have seen during the COVID-19 pandemic and its associated economic downturn, payor parents may fall into arrears because of decreased income or job loss. There is a small percentage of others, however, who retain the means to pay their Court Ordered child support and choose not to. They may evade garnishment or other collection actions, hide assets or income, and ignore increasing sanctions from MEP such as license or passport suspensions. Some parents may even go into hiding or flee the province to avoid fulfilling their child support requirements.

When faced with these extreme circumstances, what are the options for recipient parents trying to collect child support payments? One route is initiating enforcement proceedings under the Civil Enforcement Act which, in comparison to reliance on MEP, gives the parent more control over the process. Civil enforcement can be quite expensive, though, and may not be worth the investment, particularly when the payor parent is determined to evade enforcement. Furthermore, the recipient is required to de-register from MEP when commencing their own collection proceedings.

Another option to assist in collecting child support payments is to initiate contempt proceedings against the payor. Although Alberta’s MEP retains the authority to imprison a payor for willful failure to pay support or comply with other collection actions pursuant to the Maintenance Enforcement Act, this remedy is rarely, if ever, pursued. Outside of MEP’s authority to imprison a payor, the recipient parent could bring their own contempt of court application, similar to a recent Ontario case. In the case, the payor parent owed approximately $250,000 in child support, and fled the country to live with his new wife and child. The recipient parent was eventually successful in having the payor returned to Canada and jailed for contempt of court, his sentence of 4 years permitting him to purge his contempt and avoid imprisonment if he paid his child support arrears.

The Alberta Rules of Court set out the legal test and possible sanctions for contempt at Rules 10.52 and 10.53. The sanctions, if found in contempt, range from a small fine to imprisonment. However, it appears from Rule 10.52 that there is an exemption from contempt proceedings if an Order to pay money is not being followed. The relevant section of the Rule reads:

10.52(3)  A judge may declare a person to be in civil contempt of Court if
                (a)    the person, without reasonable excuse,
                        (i)    does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge

(emphasis added)

There are sound policy reasons for an exemption from contempt proceedings for non-compliance with an Order to pay money. For example, if a person is sued for $100,000 and is unable to pay the judgement, imprisoning them for being impecunious is clearly unjust. Contempt proceedings in general are not intended to punish persons who cannot comply with court Orders, but target those in willful disobedience of an Order.

A point to note: because contempt proceedings are quasi-criminal, the burden of proof beyond a reasonable doubt is on the person alleging contempt. In Rarick v Rarick, 2020 ABQB 284, the Court found the payor had the money available to pay his Court Ordered child support payments, yet chose not to; he owed significant arrears and, despite clear evidence he’d been in receipt of employment and other income, had not paid a single penny for over a year. Add to that he engaged in other troubling conduct including purchase of personalized license plates for his vehicle that read “Wuzhurz” (i.e. “was hers”). After finding him in contempt, the Court ordered the payor be imprisoned for a period of 15 days unless he purged his contempt by paying the amount owed.

The Alberta and Ontario cases of parents being imprisoned are extreme and rare. Oftentimes, in practice, the Court will give a number of warnings and adjournments to a payor, or perhaps award a small fine or costs award against them. For the Court to consider imprisonment, it will likely have explored every possible way to resolve the dispute or penalize the payor before considering jail time. Furthermore, imprisonment is counter-intuitive in most instances, as it means that the parent is not going to be able to work or earn income to satisfy payments due. It is also likely contrary to the child’s best interests, and could inflame or exacerbate an already high conflict parenting arrangement. In general, jail time is reserved only for the most serious criminal offences and offenders, and will never be taken lightly.

If you have child support concerns, or questions about the consequences of payment non-compliance, call the family lawyers at Crossroads Law for your free 20-minute consult. We also provide family law mediation services across Alberta and BC.

The information contained in this blog is not legal advice and should not be construed as legal advice on any subject. The information provided in this blog is for informational purposes only.