Getting a Stay of Enforcement of Child Support with Maintenance Enforcement
After a separation or divorce, changes in financial circumstances can affect a person’s ability to comply with the terms of a child support order. If a person’s income decreases their ability to pay child support should be reflected in this change. Unfortunately, the Maintenance Enforcement Program (“MEP”) will not automatically change the amount of child support it collects as it will only do what a child support order says. The Maintenance Enforcement Program cannot change a court order for you and will continue to enforce the amount outlined in the child support order until a new order is granted or a stay of enforcement is received.
A stay of enforcement of child support postpones the collection of child support by MEP until the family court can make a decision about how much child support should be paid. You will have to prove that you have made attempts to establish a payment plan with MEP and you have a valid reason for not paying the child support. Applying for a stay is governed by the Maintenance Enforcement Act, section 32 which states the following:
Stay of enforcement
32(1) If the Director has issued a support deduction notice or a creditor has obtained an order for payment under section 19, the debtor may apply to the Court of Queen’s Bench for a stay of those proceedings, and a copy of the application must be served by the applicant on the Director and the creditor.
(2) A stay of enforcement may be granted under this section with respect to the issuance of a support deduction notice only if the Court is satisfied that
(a) the debtor has made attempts to establish a payment arrangement with the Director and there was a valid reason why the debtor was unable to enter into an arrangement, and
(b) the debtor has a valid reason for not paying arrears or periodic maintenance payments during the period the stay of enforcement is in effect.
(3) Unless the Court provides otherwise, a stay of enforcement
(a) applies to the enforcement of arrears but does not apply to the enforcement of periodic maintenance payments from the time the stay is entered with the Court,
(b) does not stay enforcement against lump sum or nonperiodic amounts that are payable to the debtor, and
(c) terminates 9 months after it is entered with the Court.
(4) Notwithstanding subsection (1), a stay of enforcement does not stay or affect
(a) any enforcement proceedings respecting the payment of maintenance carried out in relation to a federal enactment,
(b) any registration or filing made by the Director under the Land Titles Act or in the Personal Property Registry, or
(c) any proceeding or action taken under section 22.
(5) An order may not be granted by a court under any other enactment or otherwise that has the effect of staying a matter referred to in subsection (1) or suspending or staying any proceeding, matter or action referred to in subsection (4).
(6) If a stay of enforcement is granted under this section, the Court of Queen’s Bench may direct that any money or any portion of the money paid into the Court or to the Director in respect of the proceedings that were stayed and that is still in the possession of or under the control of the Court or the Director, as the case may be, be paid to the debtor.
A stay of enforcement is also governed by precedents from other cases in family law. Generally, the test for a stay has been established by the Supreme Court of Canada as the following:
- There is a serious question to be tried;
- Irreparable harm will be suffered if the stay is not granted; and
- The balance of convenience favours granting the stay.
As an example, in the Alberta family Law case of Martin v. Martin, 2012 ABQB 55, the father applied for a stay of child support until the matrimonial property division had been dealt with. Mr. Martin, was far less wealthy than Ms. Martin. Using the test above, the Court granted a stay of child support. The court decided that the ongoing property dispute disproportionately affected Mr. Martin because of a number of family debts. The court also found that his financial situation would be seriously affected and he would suffer harm from potentially losing the property if he had to continue paying child support. However, the Court in this family law case also reiterated the importance of child support, and stated that the difference in incomes of the parties did not relieve Mr. Martin of his obligation to pay his fair share of child support because the child needs to know that the father has a responsibility towards the child and is meeting that responsibility. The stay of child support was temporary and based on the particular facts of the case.
If your financial situation changes and you can no longer pay child support as outlined in a court order, you can apply to have the payments stayed for a limited time, however, you must quickly take steps to inform MEP and attempt to negotiate a new payment plan with them first. It should also be noted, that a stay of enforcement does not mean child support is no longer owed for those months; it simply stops the enforcement by MEP until a new child support order can be issued by the court after hearing with all of the evidence pertaining to the financial positions of the parties.
If you are having trouble paying child support based on your new financial circumstances, please contact one of the family lawyers at Crossroads Law for consultation.