The purpose of the Maintenance Enforcement Program (MEP) is to collect and enforce court-ordered maintenance. However, MEP's ability to effectively collect support to the satisfaction and benefit of creditors, debtors and their children depends heavily on the clarity of the maintenance order. Much of the work achieved by lawyers when negotiating provisions, appearing in court and preparing orders may be lost if the support terms in the order are not clearly worded.

MEP enforces the clear, legal and workable terms in a support order. It applies existing policies and practices where the order is silent or ambiguous.

To ensure that a support order is enforceable by MEP, it should very clearly state the following:

• that one party is to pay the other party
• the date the payments are to commence
• the dates the payments are due
• the amount of each payment
• the conditions of eligibility and/or terminating events and
• whether the support obligation may be revived once it ends.

For an example of clear and enforceable maintenance terms, lawyers may wish to use the language contained in the Maintenance Enforcement Support Agreement. In drafting a support order, lawyers should bear in mind the following:

Recipients

For MEP to enforce a particular amount on behalf of a creditor, the order must state that the spousal support or child maintenance is payable to the creditor. MEP does not have the authority to enforce amounts (such as those relating to additional expenses) that are ordered to be paid directly to a third party or facility.

If a debtor is ordered to pay child maintenance directly to the child, MEP will enforce the order by opening an account listing the child as the creditor.

Commencement dates

An order failing to stipulate a commencement date for monthly maintenance will generally be interpreted to mean that the first payment is due in the month in which the order was granted. If retroactive amounts are due, this should be expressly indicated in the order.

Due dates

If an order does not stipulate a specific date within the month that the ongoing support is due, the debtor may make the payment any time within that month. Most orders stipulate that payments are due on the first and/or 15th day of the month, which is when MEP's revenue staff are most busy. Clients may obtain speedier service in having their payments processed if their order specifies a different due date within the month.

Orders directing that payments are due according to the debtor's pay periods are difficult to administer and may result in times where no payment is enforceable, given the possibility of unemployment or job change.

Periodic maintenance and variable orders

The periodic maintenance due ("ongoing maintenance") should be an actual dollar figure. Difficulties arise when MEP is asked to enforce orders that only make general reference to the amount under the child support guidelines or that express the amount owing as a percentage of the debtor's income. This is because debtors may derive their income from a variety of sources. Ascertaining income when the debtor is self-employed, as opposed to being a salaried employee, is particularly difficult.

MEP requests that lawyers not obtain variable orders that provide for different support amounts depending on particular circumstances, such as the debtor's employment or earnings. While MEP is often able to enforce variable orders, it can be very difficult to obtain the necessary information to determine the enforceable amount. In particular, when the support amount varies according to income, a debtor's earnings may not be easily ascertained. This may lead to delays that are problematic for both the creditor and debtor and that may require the parties to return to court to resolve the matter.

Information or documentation obtained by MEP to determine the amount of maintenance due (including proof of a debtor's income or the number of days the debtor has worked) under a variable order cannot be released to the creditor. This can be frustrating to the creditors who wish to see information to confirm the amount of maintenance MEP has determined is due, and is another reason why variable orders should be avoided.

The Maintenance Enforcement Act allows MEP to collect the highest default amount allowable by the order for the period that the debtor fails to provide income information. No amounts charged or collected in this time are recoverable by the debtor.

See "Lawyer's Guide - What are some examples of provisions in court orders that are difficult to interpret or enforce" to view examples of maintenance provisions that MEP may not be able to enforce, such as those contained in variable orders.

Additional expenses

See "Lawyer's guide - How do I ensure an additional expenses provision is enforced?" for information on the collection and enforcement of additional expenses.

Amounts toward arrears

Where there has been a prior support order under which arrears have accumulated, MEP suggests that a variation order address the matter of arrears by confirming the amount owing, providing for a payment schedule and stipulating the consequences on default of payment. A typical provision might be:

"The arrears are set at $______ as of ___________, 2005 and are to be paid at the rate of $______ per month on the ___ day of each month commencing ____________, 2005. Provided that the payor makes this arrears payment and the full amount of ongoing maintenance by the ___ day of the month, there shall be a stay of enforcement on collection."

In drafting such provisions, lawyers should be aware of MEP's policies and practices regarding stays of enforcement.

Where payment of the arrears is not addressed in a variation order or in an order providing for retroactive support, MEP will continue enforcement action or initiate action to collect all of the arrears that have accumulated under the order(s).

Conditions of eligibility and terminating events

If the support order clearly stipulates a condition of eligibility and/or terminating event(s) for payment of maintenance (e.g. "support shall be payable until the child reaches age 19"), MEP will enforce these terms. However, if the order does not stipulate a condition of eligibility for support or a terminating event (such as age, residence or student status), MEP may be able to collect child support after a child turns 18. For more information, visit MEP's info sheets When a Child Turns 18 and Maintenance for Adult Children.

If the support obligation is to terminate when the child is no longer "in the care and control" of the creditor, you may wish to have the order define the factors constituting "care and control" in terms of such things as residence, employment and/or marital status. For children entitled to support while pursuing post-secondary studies, the order might contemplate whether or not the child has to be residing with the creditor to qualify. Residence with the creditor is not an absolute requirement under MEP's current "child of the marriage" policy.

If the order states that support terminates "when the child reaches the age of majority" or "at the conclusion of his or her secondary studies" or "post-secondary studies", fulfillment of these conditions or the terminating event may be different if the child resides in a jurisdiction outside Alberta. For this reason, the parties may prefer to name an exact age, such as 18 or 21, or more clearly define the educational requirement.

Lawyers may also want to consider clearly stating whether the obligation to pay child support may be reinstated after a period that the child is ineligible. Otherwise, MEP's policy permitting reinstatement only with a new court order may apply. Further, if child support is not payable during particular periods (such as prolonged access), the order should state the periods and their duration.

Global orders

One of the most common areas of contention between MEP's creditors and debtors involves global orders and the debtor's obligation to continue to pay the full amount of support set out in the order despite one or more children leaving the care and control of the creditor. You can help your clients avoid dispute by drafting their maintenance orders to deal with this issue.

A global order sets a total amount of money to be paid for the support of two or more children per month rather than an amount per child per month. An example of a global order is, "The wife shall pay $663.00 per month for the support of the children, Tara and Ramona." Global orders are typically drafted when basing child support on the payor's income under child support guidelines. When one of the children mentioned in a global order ceases to be a child of the marriage, MEP does not usually decrease the total amount of support due. This is because MEP does not have the power to vary court orders.

The Director of Maintenance Enforcement will exercise his discretion to reduce the amount of support collected in these cases only if:

• The existing maintenance order stated the debtor's guideline income and ordered maintenance in the table amount for that income and a child has moved to live with the debtor. In such cases, MEP will adjust the amount of support collected at the debtor's request in accordance with the stated guideline income and the number of children remaining with the creditor.
• The creditor consents to the adjustment. It should be noted, however, that this consent does not necessarily prevent the creditor from later opting out of MEP and privately utilizing the provisions of the Maintenance Enforcement Act to enforce the full amount due under the order. For this reason, the debtor may still wish to return to court to vary the maintenance order.

To clearly establish the amounts due according to the number of children, you are strongly encouraged to include a "step-down" provision in the order. This sets an alternate amount of child support to be paid as each child ceases to be a child of the marriage (or fails to meet some other requirement for eligibility, such as age). A sample "step-down" provision is contained in MEP's Maintenance Enforcement Support Agreement.