Can We Lock Them Up?


Parent who refuses to pay child support

When a parent who refuses to pay child support

I just finished reading the relatively recent release of the British Columbia Supreme Court in Kawana v. Shemal, a case in which a woman attempted to bring contempt proceedings against her former spouse in an effort to bring him to justice following numerous missed payments in the face of several court orders.  The case brings to mind all of my past clients who, exasperated by their spouse’s failure to pay child support on time (or at all), come into my office with fire in their eyes and ask something along the lines of the title to this post.

The Court has been very clear that the non-disclosure of financial information is the “…cancer of matrimonial litigation.” Correspondingly, we see that the Family Law Act provides for some interesting remedies against spouses who aren’t as honest as they could be about their money. I’ve also written about that topic here. Given that the failure to pay adequate child support can be both a cause and a direct result of this ‘cancer’ of non-disclosure, surely there’s something that can be done about the failure to pay child support, as well.

Of course, the old adage about an ounce of prevention applies here: the best, cheapest and easiest solution to the headache of a delinquent payor is to minimize or eliminate the chances of non-payment in the first place. You’ve got the best chances of doing this when you’re creating your agreement or making your arguments for an order at trial.

  •  If your spouse has enough money (or assets), and gives you a really good reason to believe that they may not pay child support, you can look to s. 170 of the Family Law Act to give you some ideas of what to do, specifically the following points:

(c) that payment of a lump sum be made, directly or in trust;

(d) that a charge be registered against specific property to secure payment;

(e) that a person who has a contract of life insurance within the meaning of Part 3 of the Insurance Act

(i)  designate his or her spouse or child as a beneficiary, irrevocably or for the period designated by the court, and

(ii)  either pay all premiums on the policy, or authorize his or her spouse to pay all premiums on the policy and to                        compensate the spouse for doing so;

  • If you can’t do any of the above, you might want to consider filing your order with the Family Maintenance Enforcement Program. In a (very rough) nutshell, the FMEP will ‘step into your shoes’ and enforce your order for you. If you do this, however, you cannot enforce the order yourself while the order is registered with FMEP. It’s an either-or proposition. The chief benefits of filing your order with the FMEP are that you don’t have to chase your spouse personally, and that the FMEP can take advantage of several execution remedies not available to you as a private litigant, including (but not limited to) extensive powers to demand disclosure of documents from third parties, to prevent your ex from renewing his/her driver’s license, and (interestingly) even directly garnish any lottery winnings they may receive in the future. (See the Family Maintenance Enforcement Act for details)

Of course, if your deadbeat dad or malingering mom is already behind in payments, and you don’t want to use the FMEP, is there anything you can do? The short answer is yes, there is. The catch is: the heavier the punishment you seek, the harder it is to stick your ex with that punishment.

No matter what, you’ll first need to sue your ex-spouse for the unpaid child support, that is to say the arrears of child support. You can do this at the Provincial Court of British Columbia or the Supreme Court of British Columbia. If you get that order, and your spouse continues not to pay, you can then pursue your spouse in a variety of ways, including (but again, not limited to) applying for an order that

  1. Third parties provide you with information as to where your ex works, where his/her assets are, and what those assets are;
  2. Requires your ex to provide you with a statement of finances, or face a fine of up to $5,000.00;
  3. Garnishes your ex’s wages and/or bank accounts for up to 12 months;
  4. Prevents your ex from leaving the country, from dealing with his/her property, or destroying that property;
  5. Forces the sale of your ex’s property; or
  6. Issues a warrant for your ex’s arrest, if he or she doesn’t show up to court and you need him/her to; or
  7. Imprisons your ex for a failure to pay the arrears.

Of course, none of the above remedies are very easy to get, and all involve a great many steps to carry out. To detail each of them here is somewhat beyond the scope of this post, and well within the realm of professional legal advice. What I’m trying to get across is that there’s a whole array of options available to you if faced by a parent who refuses to pay child support, which can and should be totally exhausted long before you start talking about jail time.

Generally, it’s only as a last resort that the court will seriously consider imprisonment (which, by the way, is an additional punishment and doesn’t get rid of the arrears). As the Court in Kawana v. Shemal noted:

 In family law matters, as Madam Justice Veit stated in Salloum v. Salloum(1994), 154 A.R. 65 at para. 20 (Q.B.), restraint in sentencing is appropriate “given the twin objectives of protecting both the best interests of children in the administration of justice …  Children are better off if their parents are not in jail or paying fines.”

Implicit in this comment is that numerous court proceedings, no matter how justifiable they may be, take their toll on the children of the marriage. If you’re considering the lengthy process of enforcing a support order, a serious consideration should be what impact it will have on your children. This doesn’t mean that you can’t or shouldn’t enforce the order in question: all it means is that the balancing act of deciding in your head should include the stress, expense, and fractured relationships with both your ex and your children that might result from court proceedings.

And always, always get legal advice before doing anything at all.

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