Section 32 of the Maintenance Enforcement Act limits the court's ability to suspend particular enforcement action taken by the Maintenance Enforcement Program (MEP). It also sets timeframes for the duration of a suspension of support deduction notice (garnishee) or a "stay of enforcement".
Applications to suspend support deduction notices
If a support deduction notice in relation to wages or other funds has been issued by MEP against a debtor, s. 32(1) allows the debtor to apply by notice of motion to the Court of Queen's Bench for an order suspending those proceedings on any condition the court considers appropriate for a period specified in the order. Section 32(9) requires the notice of motion to be served on the Director of Maintenance Enforcement.
Under s. 32(2), the court may only grant an order suspending a support deduction notice if it is satisfied that the debtor is unable for valid reasons to make the payments required under his or her maintenance order.
Under s. 32(8), the Court of Queen's Bench may direct that the debtor be paid any money or any portion of money paid in court or to MEP in respect of the proceedings that are suspended and that is still in the possession of or under the control of the court or MEP, as the case may be.
Periods of time that a support deduction notice may be suspended
Section 32(7) of the Maintenance Enforcement Act requires the Court of Queen's Bench, in making an order suspending any support deduction notices, to state in the order the period of time or the circumstances under which the suspension remains in effect. If the court stipulates a period of time, ss. 32(5) and (6) limit its duration. For a first application, the period of time may not exceed three months from the day the order is entered with the court. If within the three-month period or shorter period stated in the order, the debtor applies to a court in Alberta to vary his or her maintenance order, the Court of Queen's Bench may make an order suspending the support deduction notice for only one further period of not more than six months.
Where a court order does not state a period of time or the circumstances that must be met for the suspension of the support deduction notice to continue, since it is presumed that the court acts within its jurisdiction, the order will be interpreted in a manner that conforms with the provisions of s. 32. This means that a first order will be interpreted to mean that the suspension of support deduction notice lasts for three months. A subsequent order will be interpreted to mean that the support deduction notice is suspended for an additional six months.
The court may choose to suspend a support deduction notice for a period less than those set out in s. 32. If MEP receives an order that states that a support deduction notice is to be suspended for a period longer than three or six months, as the case may be, MEP may consider applying to set the order aside.
MEP finds it very difficult to administer court orders that suspend enforcement action "indefinitely", on an "interim" basis, or "until further order of the court". If MEP receives an order that has the effect of suspending enforcement action for a period greater than three or six months, MEP may request that the parties obtain a further order within a reasonable period of time.
Circumstances under which a support deduction notice may be suspended
Rather than indicating a period of time, the court may choose to state a set of circumstances or a condition under which the suspension of a support deduction notice under s. 32 remains in effect. For example, a judge may suspend all wage and non-wage support deduction notices provided that the debtor pays the periodic maintenance amount plus a monthly contribution toward the outstanding arrears.
Unless the court order specifies otherwise, if the court requires the debtor to pay a certain amount toward outstanding arrears, the ongoing periodic maintenance payment must still be paid, even if the court order does not expressly state so. Under s. 36 of the Maintenance Enforcement Act, money paid to MEP shall be credited first to the current payments owing, next to any outstanding arrears, and last to any other amount payable and outstanding.
When MEP receives a court order suspending support deduction notices, so long as the debtor meets a particular payment arrangement, staff will suspend any wage or non-wage support deduction notices, as the case may be, and then administer the file according to MEP's regular collection progression practices. In some cases, the debtor may prefer to make the court-ordered payment through a wage support deduction notice, in which case it may remain in place.
Enforcement actions not affected by an order suspending support deduction notices
Under s. 32(3) of the Maintenance Enforcement Act, an order suspending support deduction notices does not suspend or affect the following types of enforcement action taken by MEP:
- any enforcement proceedings respecting the payment of maintenance carried out in relation to a federal enactment
- any registration or filing made by the Director under the Land Titles Act or in the Personal Property Registry
- any proceeding or action taken under s. 22 of the Maintenance Enforcement Act.
Enforcement proceedings carried out in relation to a federal enactment include federal support deduction notices and federal licence (e.g. passport) denials under the federal Family Orders and Agreements Enforcement Assistance Act. Actions taken under s. 22 of the Maintenance Enforcement Act include motor vehicle restrictions and driver's licence cancellations.
Given s. 32(3), the support deduction notices that may be suspended by the court under s. 32 do not include federal support deduction notices. Therefore, when MEP receives a court order suspending support deduction notices, only wage and non-wage support deduction notices must be suspended. Further, a stay of enforcement order does not require MEP to remove federal licence denials, motor vehicle restrictions, driver's licence cancellations, registrations at Land Titles or writs at the Personal Property Registry.
Although there are restrictions on the enforcement actions that may be affected by an order under s. 32, MEP may consider voluntarily removing these "protected" enforcement actions if staff consider it appropriate in the circumstances. For example, if the court suspends all wage and non-wage support deduction notices provided that the debtor pays the current maintenance amount plus a monthly contribution toward the outstanding arrears, MEP will administer the file in accordance with its regular collection progression practices, depending on whether or not the debtor adheres to the court-ordered payment arrangement. To learn what enforcement action MEP places at particular stages of a debtor's default on a court order, see the information sheet List of Collection Actions Available to the Maintenance Enforcement Program.
Section 32(4) of the Maintenance Enforcement Act states that an order may not be granted by a court under any other enactment or otherwise that has the effect of suspending or staying any proceeding, matter or action referred to in subsection (3). This means that a court does not have the authority to require MEP to suspend or terminate federal support deduction notices, federal licence denials, motor vehicle restrictions, driver's licence cancellations, registrations at Land Titles or writs at the Personal Property Registry. If MEP receives such an order, it will consider bringing an application to set the order aside. Similarly, if MEP receives a notice of motion asking the court to suspend enforcement action that is protected by s. 32, staff may ask the applicant or lawyer to amend the notice of motion. If the notice of motion is not amended, MEP may ask its legal counsel to intervene.
Stays of enforcement
MEP receives many court orders granting a "stay of enforcement" rather than stating that support deduction notices are suspended for a particular period of time or so long as a particular condition is met. MEP normally interprets a "stay of enforcement" in a manner similar to a suspension of support deduction notices under s. 32 of the Maintenance Enforcement Act. This is because s. 32(4) precludes a court from granting an order under any other enactment or otherwise that has the effect of suspending or staying any enforcement action referred to in subsection (3). These enforcement actions are federal support deduction notices, federal licence denials, motor vehicle restrictions, driver's licence cancellations, registrations at Land Titles and writs at the Personal Property Registry.
Accordingly, when MEP receives an order granting a "stay of enforcement", only existing wage and non-wage support deduction notices must be suspended. Other types of enforcement action will only be removed if MEP considers it appropriate in the circumstances.