Research on Compliance with Child Support Orders and Agreements in Prince Edward Island

2003-FCY-1E

3. THE P.E.I. MAINTENANCE ENFORCEMENT PROGRAM

This section of the report describes the MEP in P.E.I. The information is drawn from official program documents, discussions with the MEP Director and staff, and the observations of the researchers over the course of the study.

3.1 Relevant Legislation

Maintenance enforcement is governed by the Maintenance Enforcement Act, R.S.P.E.I. 1988, c.M-1, as amended. The latest amendments to the Act, to enable the MEP to undertake motor vehicle revocation, were in 1997.

3.2 General Description

The MEP was created under the Maintenance Enforcement Act in 1988. Before then enforcement was done by the Registrar of the Family Division of the Supreme Court of Prince Edward Island, under the Department of Provincial Affairs and Attorney General. Presently, the mandate of the Maintenance Enforcement Act provides for enforcement by a Director of Maintenance Enforcement and support staff. On the MEP’s organizational chart, the Director reports to the Director of Legal Services at the Office of the Attorney General.

The MEP has no formal relationship with other government agencies, per se. However, a liaison officer, an employee of the Department of Health and Social Services, is housed at the MEP because of the significant number of support orders, registered by that department for social assistance recipients, that require enforcement.

The MEP operates out of a single location with offices housed within the Supreme Court of Prince Edward Island in Charlottetown. The Director attends relevant court hearings at courthouses in Charlottetown and Summerside. At present, the program operates with a total of four staff (not including the Liaison Officer from the Department of Health and Social Services). These are:

Legal representation is provided to the program by in-house counsel through the Department of Provincial Affairs. These lawyers also provide legal services to a number of other government departments.

There were 1,868 cases enrolled in the MEP as of December 1998, about 1,600 of which were active at the time of the research. This compares with about 1,400 active cases in 1997. The MEP Director reports that there has been a steady and significant increase in caseload since the MEP was established. This corresponds to the experience in other jurisdictions across the country. About 82 percent of the active cases in 1998 were non-REMO (Reciprocal Enforcement of Maintenance Orders) cases, 11 percent were REMO-in cases and 7 percent were REMO-out cases.[7] A small number of the non-REMO cases involved paying parents[8] or recipients living out of province, but these did not require enforcement and, therefore, were never registered with another MEP as a REMO case. The MEP administers primarily child support orders and agreements (because spousal support orders are less frequently included in separation and divorce settlements). Almost 90 percent of cases are exclusively for child support, but 3 to 4 percent of cases are for spousal support alone, and another 8 to 9 percent are combined child and spousal support. During 1997 and 1998, the MEP processed payments totalling $4.4 million and $4.7 million, respectively.

3.3 Case Management

The operations of the MEP involve intake/withdrawal procedures, tracing/investigation activities, monitoring of case and payment behaviour, payment processing and disbursement, and enforcement activities.

3.3.1 Case Intake/Withdrawal

Enrolment in the MEP occurs in several ways. Court orders that include child or spousal support provisions are automatically registered with the MEP. As well, child and spousal support agreements can voluntarily be registered with the court and will be enforced by the MEP. This is a common practice in Prince Edward Island when agreements are drawn up with the assistance of lawyers or mediators. With the exception of cases registered by the Department of Health and Social Services (for which support payments are directed back to that office to be accounted against social assistance payments), cases can be withdrawn by recipients at any time. Likewise, recipients who have withdrawn may re-enter at any time.

Enrolment in the program requires a support order or agreement and a completed filing information form. Orders may be filed with the MEP either in person or by mail. All relevant case information is extracted from the file and entered on the MEPS (the program’s computer system). For orders made within the province, the MEP requires only one copy of the order, filing information, and any other relevant information that the client wishes to provide. Where cases are REMO-in, the MEP will accept one to three certified copies of the order, a default affidavit, and any other accompanying supporting information.

Once a case is registered, an introductory letter and payroll deduction form is forwarded within a few days to the paying parent. The letter states that within 14 days the paying parent must either contact the MEP to advise how payments will be made, or complete the payroll deduction form with the employer and forward it to the MEP. If neither of these is done, the MEP issues a payment order to the employer requiring that it deduct the support amount from pay cheques to the paying parent, and forward a cheque by the required date to the MEP. Under the Maintenance Enforcement Act, the employer is bound to meet this requirement. If there is no known employer and the paying parent does not respond to the introductory letter and no payments are forthcoming, enforcement is initiated.

3.3.2 Tracing

MEP staff often depend on recipients to provide information about the whereabouts of paying parents. They can also use the International Record Exchange (IRE) or federal tracing[9]. They also rely on the Sheriff’s Offices to assist them in locating paying parents. At present, the MEP does not have the necessary resources to conduct searches on assets, and there is no automated tracing of provincial databanks in place. Where paying parents are known or believed to be residing in P.E.I., the number of “untraceable” paying parents is relatively low. The MEP Director estimates that they would comprise about 5 percent of the total “local” cases. Cases in which there is information that the paying parent has left the province and support payments have not been forthcoming are sent to the enforcement agency in the appropriate jurisdiction under the REMO process. In these cases, the Director estimates that 10 to 15 percent do not result in any payments or enforcement action because the paying parent cannot be located.

Cases in which the paying parent has not been located remain active in the MEP system, and efforts are made periodically to follow up on previous tracing efforts. Most often, however, it is new information brought to the attention of the MEP by the recipient or a friend or relative that initiates action on a file that has been “untraceable”.

3.3.3 Monitoring

The MEP’s information system is capable of producing “obligation reports” from which staff can identify payments that are past due. However, because of the size of the current caseload and the amount of time required on individual case management, staff more typically respond to notification from recipients that payments are past due. As well, cases in which enforcement has already been initiated, or which are known to be “problem” cases, are regularly reviewed to ensure that enforcement is proceeding. It is recognized that this approach tends to be somewhat selective in the enforcement service provided, as the demand from the users tends to overpower the prioritizing of enforcement strategies.

3.3.4 Payment Processing and Disbursement

The MEP is primarily a “pay-to” system (meaning that the MEP receives and deposits payments, and then issues its own cheques to recipients), but it also allows paying parents to “pay-through” the program (meaning that cheques from the paying parent are recorded at the MEP and then sent on to the recipient). The program accepts non-certified post-dated personal cheques, cash, bank drafts, money orders and certified cheques. The MEP recently initiated an automatic deposit and withdrawal system. The paying parent is issued a receipt and the recipient receives a cheque from the MEP. It is common for paying parents to deliver payments directly at the MEP office, and for recipients to pick up their cheques at that office. When an NSF (non sufficient funds) cheque is received, the paying parent is charged for this item, and the program may opt to not accept any personal cheques from this account in the future. In a small number of cases, with the agreement of the recipient, the paying parent pays support directly to the recipient. This arrangement is noted in the case file, and any subsequent problem with payments requires notification by the recipient, at which time the MEP may require that future payments be made through the MEP.

3.3.5 Enforcement

When the MEP becomes aware that a payment is late, the Director (DME) can initiate a variety of actions. The choice depends on the frequency with which the paying parent in question has been in default, other recent enforcement actions taken and the result of those actions, information about the income circumstances of the paying parent, and other factors. The initial MEP response is usually to telephone the paying parent (or write, if no response is forthcoming) to inquire why the payment is late, and make arrangements for immediate payment. If this is not accomplished, or if there is a history of default, more formal enforcement actions are taken.

Enforcement falls into two categories, either “administrative enforcement” and “court enforcement” (also known as judicial enforcement). Since the DME is empowered with a range of enforcement strategies, it is when all administrative enforcement strategies have failed that the DME relies on judicial enforcement. This includes situations in which the DME has been unable to obtain cooperation from an employer, and where paying parents are self-employed or earning “under the table” income.

3.3.5.1 Administrative Enforcement

It is the duty of the DME to enforce maintenance orders filed at the MEP in any manner that appears practicable. In taking enforcement action, the DME may require from any person or public body any information or control concerning the location, address or place of employment of the paying parent, and any information about the paying parent’s employment income and terms of employment. The DME may also provide that information to a person performing similar enforcement functions in another jurisdiction. Where enforcement of an order or agreement is initiated outside Prince Edward Island and is directed to a paying parent residing in Prince Edward Island, the DME is responsible for enforcing that obligation.

The federal government offers assistance to the provinces and territories to enforce support orders, as follows:

3.3.5.2 Court Enforcement

P.E.I.’s Maintenance Enforcement Act provides the DME with remedies through the courts for defaults on child support and maintenance orders and agreements. Defaulting paying parents are given an opportunity to meet with the DME to come to an arrangement to meet their support obligations. If such a meeting does not take place, or if the meeting does not result in a satisfactory arrangement that is acted upon by the paying parent, the paying parent is scheduled for a court hearing. In the meantime, or afterwards, the DME may initiate whatever administrative enforcement measures are deemed appropriate. The Act provides that:

Where a maintenance order that is filed in the Director’s office is in default, the Director may prepare a statement of the arrears and the Director may, by notice served on the paying parent together with the statement of arrears, require the paying parent to file in the Director’s office a financial statement in the form prescribed by the rules of Court and to appear before the Court to explain the default.[10]

The Court may, unless it is satisfied that there are no arrears or that the paying parent is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the paying parent:

When the DME issues notices of default an invitation appears on the summons for the defaulter to meet with the DME and the program’s legal counsel to attempt to resolve the matter prior to the court hearing. In some cases the defaulter has had a change in income level and may be considered unable to meet the obligations. These defaulters may be given some time to pursue variation through the courts, and are referred to the Child Support Guidelines Office (a service provided through the courts with federal funding contributions to assist parties in applying for variations to orders or agreements) or independent counsel. Arrears continue to accumulate until a variation is ordered by the court. In the event that resolution is successful, the case is removed from the court docket. The DME has observed that the judiciary supports this “resolution environment”, notably because of the fact that the court docket may include as many as 35 cases and the pre-hearing meetings may result in as few as three cases actually going before the court. In the event that the defaulter does not follow through with recommendations agreed to during the resolution meeting, the matter is further dealt with by the court and through administrative enforcement measures.