Under the Maintenance Enforcement Act and Interjurisdictional Support Orders Act, the Maintenance Enforcement Program (MEP) may enforce only certain types of orders and agreements. The ability of MEP to register and enforce a particular document depends on whether it is an order or agreement, whether the order is final, provisional or a variation, and which court, jurisdiction or legislation is involved.
Court orders
MEP is authorized to enforce provisions requiring the payment of support found in any final or interim order of any court of Alberta, other than a provisional order that has not been confirmed.
MEP can also enforce orders granted in jurisdictions having reciprocal agreements with Alberta under the Interjurisdictional Support Orders Act. See the Info Sheet - When a Creditor or Debtor Resides Outside Alberta for more information on creditors and debtors who reside outside of Alberta.
Provincial Court maintenance orders
If a Provincial Court maintenance order is registered with MEP, staff may choose to file the order at the Court of Queen's Bench. Filing at the Court of Queen's Bench is necessary before MEP can issue support deduction notices to collect the maintenance. Changes made to the Maintenance Enforcement Act in 2004 ensure that this filing will no longer remove the jurisdiction of the Provincial Court to vary the order. (See section 10.2 of the Maintenance Enforcement Act.)
Provisional orders
A provisional order or provisional variation order is an order granted in one jurisdiction (where the applicant lives) that must first be confirmed in the jurisdiction where the respondent to the application resides before it is enforceable. These typically occur where the parties reside in different jurisdictions and only one was represented at the hearing that granted or varied a support obligation. Since the Interjurisdictional Support Orders Act (see Section XI) came into force, provisional orders are rarely required.
To ensure that a provisional order is not inadvertently registered and enforced as a final order, the order must clearly be titled "Provisional Order" or "Provisional Variation Order." It should also contain a stipulation that the order is of no force or effect until confirmed by a court of competent jurisdiction in the province or state where the respondent resides.
A provisional order should be accompanied by a provisional package as set out in the Interjurisdictional Support Orders Act and section 18 of the Divorce Act. It should include three certified copies of the order and all supporting documentation, to be prepared by the client or lawyer.
The package is submitted at the courthouse, which will then transmit the provisional order and package to the provisional clerk at MEP. The provisional clerk then forwards the documents to the reciprocal jurisdiction for confirmation. The entire process can take up to two years. Not all provisional orders are confirmed in the reciprocating jurisdiction; the provisional order may be varied or rejected altogether.
Where a provisional order contains a stay of enforcement, it may not be clear whether the stay is to take effect immediately, or only on confirmation. To ensure that a stay of enforcement in a provisional order is followed, the order should state that the stay is to take effect immediately even though the rest of the order does not take effect until confirmation.
Agreements in Alberta and in other jurisdictions
Currently, Alberta MEP cannot enforce maintenance agreements made in Alberta other than certain ones entered into under the Family Law Act, the Parentage and Maintenance Act, the Child, Youth and Family Enhancement Act, the Income and Employment Support Act, the Income Support Recovery Act and the Maintenance and Recovery Act (prior to January 1, 1991). Lawyers should be sure to consult the act under which an order or agreement was made to ensure that it will be enforceable, given the terms of the relevant legislation and the Maintenance Enforcement Act.
The Maintenance Enforcement Act allows the enforcement of support agreements that are in the form prescribed by the Maintenance Enforcement Regulation. The regulation was amended to provide this prescribed form of agreement. This agreement is also the form of agreement used under the Family Law Act.
Agreements that are made pursuant to legislation of a reciprocating jurisdiction are enforceable by MEP in accordance with the Interjurisdictional Support Orders Act.
Minutes of Settlement and other settlement agreements
MEP cannot enforce the terms of support contained in Minutes of Settlement or other settlement agreements unless they have been incorporated into a court order. Lawyers should expressly incorporate the relevant agreement in the support order to ensure that MEP is able to enforce the terms of the agreement, or use the agreement form set out in the Maintenance Enforcement Regulation. Lawyers should also be aware that certain foreign jurisdictions file agreements without any court order. MEP will enforce these filed agreements in accordance with the Interjurisdictional Support Orders Act.
Amended Minutes of Settlement do not vary an existing order incorporating the former Minutes of Settlement. The new minutes must be incorporated in a new order.
Variation orders
An order registered with MEP has normally been filed at the Court of Queen's Bench and can therefore only be varied by that court or a higher tribunal. It is MEP's general practice to construe variation orders narrowly. In other words, the new order will be interpreted to vary only what it actually addresses, in the absence of a clear indication of what paragraphs of the prior order or agreement are replaced.
For example, a variation order setting a new amount of child support may not be viewed as also replacing the eligibility provisions of the prior order. In cases of ambiguity, MEP may choose to consult the Notice of Motion or Claim, the clerk's notes, the lawyers involved and/or the parties to determine the intent of the variation order.
Variation agreements
In Alberta, agreements cannot override a court order. Therefore, if the original order is an Alberta order and an agreement is received that contradicts provisions in the order, MEP cannot register or enforce the variation agreement. The terms of the agreement must be incorporated in a new court order.
However, under the Interjurisdictional Support Orders Act, Alberta MEP can enforce a variation agreement granted in another jurisdiction if the legislation of the foreign jurisdiction accepts the variation agreement and the agreement was filed in the court of the foreign jurisdiction.
If a maintenance agreement under the Parentage and Maintenance Act or Income and Employment Supports Act has been registered with MEP and filed at the Court of Queen's Bench, a variation agreement under the same legislation will override the original agreement and will be enforced.