Calgary Stay Of Support Enforcement applications can be brought by a spouse who was ordered to pay spousal support or Calgary child support. Aside from dealing with parenting of children and the division of their common property, separating couples (whether married or common-law) also have to deal with their on-going financial responsibilities to their children and each other. Given the dramatic slowdown in the Calgary and Alberta economy, Calgary Stay Of Support Enforcement applications are more frequent. When applications to correct spousal or child support downward and reduce or cancel support are not made promptly by paying spouses arrears can build up rapidly. Senior Calgary family lawyer, Peter Graburn explains what your options are. Contact our Calgary support lawyers today to avoid a nasty enforcement surprise.
Calgary Family Lawyers 403 444 5503
As we have repeatedly stated, child support is the right of the child and the duty of both parents to pay. Furthermore, a separated spouse may have established an entitlement to receive financial support for a period of time due to the particular circumstances of their relationship and their current economic situation.
Sometimes the former partners can work these financial matters out between themselves, but sometimes a former partner may need to get a Court Order and register the Order with their local support enforcement agency (in Alberta, the Maintenance Enforcement Program, or “MEP”; in B.C., the Family Maintenance Enforcement Program, or “FMEP”; in Ontario, the Family Responsibility Office, or “FRO”) and even federal legislation to ensure enforcement of the financial support Order. The Alberta MEP can take very severe measures to enforce a registered Alberta financial support Order, including (but not limited to):
- garnish wages and bank accounts;
- suspend or cancel drivers’ licences;
- seize federal tax refunds, GST rebates, and EP payments;
- cancel passports, etc.
Calgary Stay Of Support Enforcement – When Can I Apply For A Stay?
But what if there are circumstances that make it difficult (or impossible) for the payor spouse to pay (or continue to pay) the financial support ordered? In some circumstances, the payor may apply for a Calgary Stay Of Support Enforcement (ie. temporary suspension) of enforcement of the financial support Order by the local support enforcement agency. Examples of these circumstances may include:
- The Appeal of the Order – filing an appeal of the Court decision to grant a financial support Order does not automatically stop enforcement of the Order by the local enforcement agency. The Court will look at the reasons for the appeal and any prejudice to either party in deciding whether to stay enforcement of the Order pending appeal;
- Incarceration – sometimes a payor finds themselves in jail after a financial support Order is granted. The Court may be alternatively sympathetic to this (see Alberta Court of Queen’s Bench in B.G.N. v. R.T.N., 2000 ABQB 926, where the payor was granted a Stay of Enforcement after he had been convicted of unlawful confinement and assault of his former partner) or not (see Dow v. Ontario, 2000 CarswellOnt 3360, where the Court found the “balance of condolence lies in favour of the payee in these particular circumstances”) considering the specific circumstances of the payment of the support and the incarceration;
- Delay in Enforcing the Order – the Court may grant a stay of the enforcement of the financial support Order if a delay and then sudden enforcement by the local enforcement agency causes prejudice to the payor;
- Divorce Proceedings – the Court may also grant a stay of the enforcement of the financial support Order pending settlement of the division of the common property of the former partners (see Martin v. Martin, 2012 ABQB 55);
- Orders from Other Jurisdictions – sometimes financial support Orders are granted by Courts in other provinces or countries which raise serious issues about the merits or finality of the financial support Order being enforced by the local enforcement agency;
- Change in Financial Position – sometimes changes in a payor’s financial circumstances require the payor to commence an application to vary or cancel arrears accumulated under the existing financial support order or cancel arrears. In this situation, the payor may also bring an Application for a Stay of Enforcement of the existing financial support Order until the Application to vary the Order has been heard.
Calgary Stay Of Support Enforcement MEP Legislation
So how does a payor under a financial support Order obtain a Calgary stay of support enforcement (ie. suspend) enforcement of that Order pending a change of the above situations or re-hearing by the Court? The local enforcement agency will not automatically stop enforcing the Order in these situations – their mandate is to follow and (if necessary) enforce the Order. Accordingly, the payor has to apply to the Court for a Stay of Enforcement of the Order. In Alberta, section 32 of the Maintenance Enforcement Act (the legislation that governs the Maintenance Enforcement Program) provides that a debtor may apply to the Court for a stay of the financial support Order for a period up to nine (9) months if they have [s. 32(2)]:
- made attempts to enter a payment arrangement with MEP and there are valid reasons they were unable to do so
- valid reasons for not paying the arrears or on-going financial support.
Calgary Stay Of Support Enforcement The Legal Test
In this situation, the Court may grant a stay of enforcement of collection proceedings on the financial support Order and set a lesser (or nominal) amount of financial support to be paid under such stay. But what are the principles a Court will look at in determining whether to grant such a Calgary stay of support enforcement and for how long? As discussed above, the Court will generally look at the following general issues in determining whether to grant a stay of any Court Order:
- Is there a serious question to be tried?
- Will, there be irreparable harm if the stay is not granted? and;
- Does the balance of convenience favour granting the stay?
But more specifically, the Court will look at the issue as to whether the Applicant for the Calgary stay of support enforcement (ie. the payor) has come to the Court with “clean hands”, meaning that the payor has made real attempts to comply with the financial support Order (ie. by making regular support payments) and not attempted to prejudice their former partner (ie. by not providing full financial disclosure, undertaking responses, etc.).
As can be seen from above, it is possible to apply to temporarily stay (suspend) enforcement on the collection of financial support in certain circumstances. But the test is high. Courts expect obligations set out in the financial support Order to be honoured. As Justice Veit of the Alberta Court of Queen’s Bench held in the case of Martin vs. Martin (2012 ABQB 55 at para’s 12-13) regarding a stay of enforcement re child support:
“The fact that Ms. Martin is very much more wealthy than he is does not, of course, relieve Mr. Martin of the obligation to pay his fair share of his child’s support. That is not because the child needs the money; rather, it is because the child needs to know that the father has a responsibility towards the child and is meeting that responsibility and because Mr. Martin needs to know that he has a legal as well as a moral responsibility towards his child.
Should the enforcement of Mr. Martin’s obligation to pay child support be suspended until the couple’s property issues are settled? For obvious policy reasons, it will be rare that a parent’s obligation to pay child support can appropriately be suspended. Moreover, as Ms. Martin observes, there is a court order requiring Mr. Martin to pay child support while there is no order requiring her to make any contribution to the matrimonial debts.
Circumstances sometimes arise that make it necessary to get a temporary stay of enforcement (and possible reduction) of child and spousal support payments until those circumstances change. Calgary Stay of Enforcement Lawyers help their clients understand the high legal test necessary to obtain such a temporary stay or reduction, and guide their clients through the Court process necessary to obtain this temporary relief.