Under s. 5(1) of the Maintenance Enforcement Act, "if the Director considers it practicable to do so, the Director shall enforce a maintenance order that is filed with him in the manner he considers appropriate…". It is in the best interest of your client to draft court orders that are easily interpreted and administered so that the Director will find them practicable to enforce. The following are examples of actual provisions in maintenance orders that MEP has found difficult or impossible to administer.

Variable orders

Example: Employment status

"This court orders that the respondent pay to the applicant for the maintenance of the child the sum of $100.00 per month while the respondent is in receipt of unemployment insurance benefits and the sum of $200.00 per month when the respondent is employed."

This provision requires MEP to obtain proof of employment status from the debtor, which can delay adjustments to the account. Staff must also make a judgment call regarding the timeframe in which the debtor may provide the information, failing which the account will not be adjusted or the higher amount will be payable. Further, the order is silent as to what amount is payable if the debtor is unemployed, but not receiving unemployment insurance.

Example: Change in income

"The parties shall review child support annually and it shall be based on the payor's income for the previous year. In order to facilitate this review, the parties shall exchange their income tax return for each year by May 15th of the following year and child support shall be reviewed on or before July 1st. The adjusted amount shall be payable retroactively to the 1st day of January of that year and there shall be an adjustment for any over or under payment."

This variable court order is difficult to administer, as MEP cannot control whether the parties actually exchange their income tax returns. In this situation, the debtor provided her income tax return to MEP and asked for an adjustment. MEP was unable to determine her guideline income, given various business deductions and the creditor's disagreement as to what line in the income tax return to use. In the end, MEP chose to enforce the original court-ordered amount unless the parties could agree between themselves what the guideline income should be.

Additional expenses

Example: Clothing

"The parties shall each be responsible for 50% of the clothing costs of the children. For the purchase of outerwear, boots and other specialized clothing that need only be bought once, the respondent shall pay the petitioner the sum of $250.00 on November 1 and $250.00 on June 1 of each year which shall be his 50% contribution to these items and the petitioner shall purchase these items."

This order requires MEP to obtain clothing receipts from the creditor, in which case the debtor may disagree with the amount spent or the items purchased. Because of its duty of confidentiality, MEP cannot provide copies of the receipts to the debtor. If the debtor has the receipts, he/she may allege that the receipts are for clothing not actually bought for the children, but bought for the creditor or a third party.

Example: Child care costs

"6.(a) The plaintiff shall pay his proportionate share, that being 54.74%, of the after tax deduction costs of the child care to a maximum before tax deduction child care cost of $350.00 per month, provided that the defendant provides to the plaintiff, and Maintenance Enforcement, monthly receipts for the said child care costs.

(b) The amount payable by the plaintiff shall, in the first instance, for any given month be calculated on the basis that the before tax deduction cost of child care is $350.00 per month, and accordingly the plaintiff shall, subject to subparagraphs (c) and (d), pay the defendant the sum of $105.65 per month, calculated as follows:

(c) Where the defendant fails to provide the plaintiff and Maintenance Enforcement with a receipt for child care expenses for any given month or provides a receipt for less than $350.00 for any given month, the amount of child support for the following month shall be adjusted to cover the overpayment made for the month in which the absent or lesser amount (than $350.00) receipt relates.

(d) The overpayment for any given month (calculated on an after tax deduction basis), will be determined and calculated as follows:

(i) Firstly, calculating the total annual before tax deduction costs of child care (TABTDCCC), by adding the amount paid for child care for the month in which the absent or lesser amount receipt relates, and 11 x $350.00; which is represented by the following formula:

TABTDCCC = the amount paid for child care for the month in which the absent or lesser amount receipt relates + (11 x $350.00)

(ii) Secondly, calculating after tax deduction costs of child care for the given month (ATDCCCM), by calculating the total annual after tax deduction costs of child care (TAATDCCC), (using Childview and the amount calculated in subparagraph (i) above), and subtracting 11 x $193.00 from that amount; the remaining amount being the total after tax deduction costs of child care for the given month, which is represented by the following formula:

ATDCCCM = TAATDCCC - (11 x $350.00)

(iii) Thirdly, by subtracting the plaintiff's proportionate share (54.74%) of the after tax deduction costs of child care for the given month from the amount paid in the first instance as the plaintiff's proportionate share of the after tax deduction cost of child care for the month ($105.65); the result being the amount of overpayment for an given month (OPFAGM), which is represented by the following formula:

OPFAGM = $105.65% - (ATDCCCM x 54.74%)"

This order is very difficult and time-consuming to administer, given the need to obtain receipts, apply a relatively complex formula and adjust the account monthly. MEP also does not have access to "Childview". Further, MEP would not be in a position to determine the creditor's "after tax deduction cost of child care" in the event that she changed income tax brackets.

Eligibility to receive support

Example: Post-secondary studies

"The husband covenants and agrees to pay as maintenance for the children $350.00 per month per child until each child reaches the age of eighteen (18) years provided the child continues to be financially dependent on and residing with the wife. In the event the children continue with post-secondary education and are financially dependent on and residing with the wife, then the husband agrees to continue to make such payments until the children reach the age of twenty-one (21) years."

This provision does not contemplate whether support is payable if a child is over 18 but attending secondary school or if a child, for instance, is attending post-secondary school in another province and therefore cannot reside with the creditor (but is still financially dependent on her). Further, the order does not clearly indicate whether the payment of maintenance may be revived after a child ceases to be eligible for a period of time.

MEP found it difficult to interpret this provision when a child turned 18 in March before graduating from grade twelve. Although it may not have been the intention of the parties or the court, the order suggested that he was not entitled to support from April onwards, even though he was still in secondary school. Further, the order may have been interpreted to mean that the child could receive support retroactively on commencement of post-secondary studies at any time before age 21. This is because support would then "continue" uninterrupted from the date of the order up to age 21, even for periods that the child was not in school. A third interpretation was to preclude support when the child was over 18 and in secondary school and to allow maintenance to be revived, but only for those periods that the child was over 18 and in post-secondary school.