Q: My daughter is in the midst of a divorce. The court has ordered her
husband to pay support for her and the children. She was told by the
court to file the support order with the maintenance enforcement
branch. This she did on Nov. 1. A month later she hired a lawyer, who
asked for a retainer of $1,000, which we provided. It is now early
February and she hasn’t received anything. We haven’t heard from either
the lawyer or the maintenance enforcement agency.
Read Also
Starting a small business comes with legal considerations
This article sets out some of the legal considerations to start a business to sell home-grown product, such as vegetables, herbs, fruit or honey.
A:It is common practice for a lawyer to ask for a retainer before
undertaking work on behalf of a client. This is a way of ensuring
payment. If a case doesn’t turn out as the client wants, she may
decide not to pay the fee. This really isn’t any different than when
you go to a store to make a purchase. In most cases you pay before you
take the goods.
Like other judgments, maintenance orders can be enforced by
garnisheeing wages or bank accounts and by having property seized by
writs of execution. Unfortunately, these procedures take time, are
costly and do not guarantee that the maintenance orders will be
collected.
In the mid-1980s, governments across Canada became concerned with the
large amount of unpaid maintenance orders. Spouses who held the order
were usually wives who did not have the money for legal and court fees
for enforcing payments from former husbands. Often they ended up on
social assistance. As a solution, provincial governments began setting
up maintenance enforcement offices to assist spouses and children to
collect support. Such offices can take wages, bank accounts, RRSP and
pension funds and government payments. They can also seize property and
file liens against land.
Federal legislation was passed allowing provincial offices to claim
against federal payments such as unemployment insurance, tax refunds,
pensions, agricultural subsidies and can also lead to cancellation of
federal documents such as passports and federal licences such as for
pilots.
The maintenance enforcement office can summons someone to court to
explain why he hasn’t made payments and can ask for financial
statements. Non-compliance with a court order can result in
imprisonment for contempt of court. Provinces have passed legislation
under which orders from another province can be enforced by each
other’s office. Money collected by a provincial maintenance office is
paid to the person who was awarded the support.
Do you need a lawyer if the support order is going to the maintenance
enforcement office? In some instances, a lawyer may be able to get a
garnishee order issued quicker than the provincial staff. However,
once an order is registered with the maintenance enforcement office, it
can refuse to act if the person is acting on their own by using a
lawyer.
While provincial maintenance offices have considerable power, they
can’t guarantee success. First, the spouse who owes maintenance has to
be found. Then they have to have some money or assets that can be
seized. So when someone asks to be paid in cash only, it may not only
be income tax they are trying to avoid. And like many government
agencies, enforcement offices face a lot of demand and sometimes it may
take a while to get to a case. Nevertheless, the Saskatchewan office
reports that it has a 75 percent success rate in collecting maintenance.
Don Purich is a former practising lawyer who is now involved in
publishing, teaching and writing about legal issues. His columns are
intended as general advice only. Individuals are encouraged to seek
other opinions and/or personal counsel when dealing with legal matters.
