Getting a Stay of Enforcement of Child Support
After a separation or divorce, changes in financial circumstances can affect a person’s ability to meet the terms of a child support order. Unfortunately, the Maintenance Enforcement Program (MEP) will not automatically change the amount of child support it collects – it is bound by the terms of the order and will continue to enforce the amount outlined.
What can be done?
A stay of enforcement postpones the collection of child support by MEP until the family court can decide how much should be paid. The stay requires proof of attempts to establish a payment plan with MEP and valid reasoning for not paying the mandated child support. In applying for a stay, the Maintenance Enforcement Act, section 32 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
- 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
- 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
- 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,
- does not stay enforcement against lump sum or nonperiodic amounts that are payable to the debtor, and
- terminates 9 months after it is entered with the Court.
(4) Notwithstanding subsection (1), a stay of enforcement does not stay or affect
- any enforcement proceedings respecting the payment of maintenance carried out in relation to a federal enactment,
- any registration or filing made by the Director under the Land Titles Act or in the Personal Property Registry, or
- 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 determined. Using the test above, the Court granted a temporary stay of child support, deciding 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 also reiterated the overall importance of child support, stating the difference in incomes of the parties did not relieve Mr. Martin of his obligation to pay, and emphasizing the child’s need to know that his/her father was meeting his responsibility.
So, if your financial situation changes and you can no longer pay child support as outlined in a court order, apply to have the payments stayed for a limited time. Inform MEP and attempt to negotiate a new payment plan, keeping in mind that a stay of enforcement does not mean child support isn’t owed for those months – it merely pauses MEP until a new child support order can be issued by the court after hearing all of the evidence pertaining to the financial positions of the parties.
If you’re struggling to pay child support based on new financial circumstances, give our Legal Navigator a call for a free consultation.