By notice of motion, a debtor may apply to reduce periodic maintenance or to set, reduce or cancel any outstanding arrears. When bringing a variation application, the Notice of Motion should be served on the Maintenance Enforcement Program (MEP). It is prudent to resolve the application as quickly as possible as this may avoid unnecessary collection action being taken against the debtor.

MEP often receives letters from lawyers asking us to cease collection pending the outcome of a variation application. In general, however, MEP will not stop enforcement merely because a variation application is being commenced. MEP staff may consider withholding certain enforcement action pending a variation application, provided that the application is heard within a reasonable period of time. The withholding or removal of enforcement action is more likely to occur if the debtor has a demonstrated financial inability to pay or MEP's file suggests that the debtor will likely be successful with the court application, given information provided in his or her sworn Statement of Finances. It is also open to a debtor to apply for a stay of enforcement pending the outcome of the variation application.

Arrears due to the Crown

It is particularly important to serve MEP with notice of an application to reduce maintenance arrears where arrears may be subrogated or due to the Crown for periods that the creditor received social assistance from the Ministry of Employment, Immigration and Industry. When a creditor receives Income Support or Assured Income for the Severely Handicapped, some or all maintenance amounts payable during the period of assistance may be due to the Crown. For more information, see Income support and the government's right to receive maintenance payments.

If arrears are due to the Crown, MEP's legal counsel may appear in court to oppose an application to reduce or cancel them. The courts have ruled that creditors, debtors and their lawyers cannot agree to reduce or eliminate arrears due to the government.

Under s. 2.2(5) of the Maintenance Enforcement Regulation, MEP may advise a debtor or a debtor's legal counsel whether any of the arrears are subrogated or due to the Crown and if so, the amount and the periods of time the Crown was entitled to maintenance. It is suggested that lawyers applying to cancel maintenance arrears should always contact MEP first to determine if there are Crown arrears.

Obtaining information for a court application

If you are bringing a court application on behalf of a client of MEP, MEP staff may provide you with particular information to assist in your application. Please see Lawyer's Guide - How do I obtain my client's MEP account information to learn the following:

• Information that may be released
• Authorization to release client information to legal counsel
• Obtaining statements of account and account balances for court

Court orders reducing maintenance or maintenance arrears

Once an order is granted, you should promptly file and serve the order on MEP so that staff can appropriately adjust the enforcement action in place against a debtor. MEP staff will not adjust a file on receipt of a draft or unfiled court order. Further, once a filed order is received, MEP staff will require a sufficient number of business days to review the order, adjust the account and remove collection action, if appropriate.