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Maintenance Enforcement Program - Lawyer's guide

From the MEP website June 2007

"The mission of the Maintenance Enforcement Program (MEP) is to help families achieve compliance with maintenance orders. MEP enforces court-ordered maintenance in accordance with the Maintenance Enforcement Act.

MEP seeks the voluntary cooperation of all people involved in orders for maintenance and relies to a great extent on the collective participation of its partners: debtors, creditors, employers, financial institutions, other income sources and the family law bar. If you are a lawyer practising family law, MEP hopes you will find the following information useful.

To all family law practitioners: The maintenance enforcement clause that is required to be included in all support orders is being changed. The new clause makes it clearer to parties that debtors have the option of initiating registration with the Maintenance Enforcement Program (MEP) and that one party must in fact register before enforcement will commence. Although the change will not officially come into effect until regulatory changes are made in early 2007, the courts will be accepting orders containing the new clause starting immediately. Please ensure you update all of your precedents with the following new clause:

The amounts owing under this Order shall be paid to the Director of Maintenance Enforcement ("MEP") at 7th Floor North, 10365-97 Street, Edmonton, Alberta T5J 3W7, (780) 422-5555 (website: www.albertamep.gov.ab.ca) and shall be enforced by MEP upon the creditor (recipient of support) or debtor (payor of support) registering with MEP. Such enforcement shall continue until the party who registered gives MEP a notice in writing withdrawing the registration pursuant to Section 9 of the Maintenance Enforcement Act."

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Legal bloodletting

Maintenance‑enforcement programs are ruining too many live

by Candis McLean

Rick Fowler remembers the “gut wrenching” case that made him vow to commit every spare minute to helping people known contemptuously as “deadbeat parents.” The case concerned “Edward Cooper” (not his real name), an Albertan formerly married to a doctor. She had employed him during their marriage and, since the wages were a write off, paid him extremely well for his labour. Yet upon their divorce, although he had lost that job and was now earning only $8 an hour, the judge inexplicably based Mr. Cooper’s support payments upon the wages he had been earning while in the employ of his ex‑wife. Months later, in a presentation to the Alberta government’s Maintenance Enforcement Program (MEP), Mr. Cooper’s girlfriend revealed the man’s merciless, behind‑the‑scenes struggle while his ex‑wife lived in a luxury home and drove the children to music lessons in her SUV.

“When I first met him in 1997,” the girlfriend explained, “he was living in a little room in Chinatown. At that time he had no car‑really, he had nothing materially. Financially I wondered how he even survived. When he started as an apprentice cabinetmaker for $8 an hour, the only thing that I saw happen was that he worked very long, hard days and still had nothing to show for it. Legal bills grew as he tried to get a maintenance order to reflect his actual income. Edward didn’t even get the opportunity to see his kids, yet not once did I hear him complain of having to pay child support.

“He lived on nothing. He never had food in his house. And yet, somehow, maintenance enforcement was able to garnishee wages on five occasions. After the deductions, he took home less than he was paying for maintenance ‑ on an order that was out of date. He had obtained a new order for significantly less payments per month, yet somehow MEP enforced the old one that was based on a significantly higher income. I believe it was due to pressure placed on MEP staff by a relentless, demanding ex‑wife, who used her position as a doctor to influence the action that was taken. “Falling behind in his rent, Mr. Cooper was evicted and unable even to afford a bus pass. “Then his parents gave him $200 to buy an old car; it took a lot of gas and it had no heat. For a little while, Edward had hopes that this vehicle would allow him to seek employment in the field for which he was trained, and thus get a chance to try to build a life. He literally was trying, so very hard, to pull himself up by the bootstraps. Then the car died, and once again things went down hill. “I remember one month that Edward was two days late making his maintenance payment. His ex‑wife had him into court and she wanted him put in jail. Of course, even before that case was heard, the payment had been made. Edward fainted in the courtroom, the pressure was just so great. The judge commented, “What are you trying to do? Destroy this man?’ Obviously, that was [the ex‑wife’s] objective. Unfortunately, MEP helped her in doing so.”

Finally Mr. Cooper was forced to live in his car, and eventually, in 1999, he died in his car, using the exhaust to end his life. “Edward actually died of a broken heart,” his bereaved girlfriend maintained. “It was unjust, just plain wrong, what this system allowed. I blame [the ex‑wife], but she only did what the system let her do. In the end, Edward was destroyed. His life literally hung in the balance, and when he needed Alberta justice to support his case, it failed him, setting him on a slippery slope on which, unfortunately, he never regained his footing.

“He gave everything‑financially, emotionally‑in every way to get back a relationship with his children. That’s not a crime. All he was asking for was fairness. Justice. He never received it. The impact and sphere of influence of the family laws governing such circumstances cannot be measured. And there are many other children and dads that need to have relationships protected by the law, not allowed to die. God gave every child two parents for a very simple reason: every child needs influence and a relationship with both parents. Anything less is robbing our children of the emotional wholeness that they so definitely deserve.”

In the two years since listening, “heartbroken,” to this woman’s story, Mr. Fowler, a journeyman painter and a director of the Equitable Child Maintenance and Access Society in Edmonton, has lived up to his vow, helping over 140 people through a myriad of problems associated with maintenance enforcement. As well as dealing with individual cases, his committee meets with MEP management every 60 days to discuss sorely needed changes to the system, which deals with “deadbeat parents.” These are the divorced parents who are denied primary custody of their children following a divorce, and who therefore must make payments toward their support, but for various reasons‑usually poverty‑are not able to do so. These are handled by collection programs run by provincial justice or social service departments; Mr. Fowler believes Alberta MEP is a leader, one of the few willing to work with non‑custodial groups such as his, to improve services. According to MEP director Manuel da Costa, “We’re an in your‑face organization, but we also use counselling, mediation and dialoguing with groups like ECMAS.” Of all files with the collection program, 25% never have problems, 65% have occasional problems and 10% are actively pursued‑the true “deadbeats” who seek to escape by constantly moving and joining the underground economy, dealing strictly in cash and leaving no paper trail. MEP special investigators perform yeoman service in running many of them to the ground. The problem occurs, however, when maintenance‑enforcement services utilize similar collection techniques on the 90% of parents who want nothing more than to provide for their children and meet their payments.

One of Mr. Cooper’s distraught friends wrote to ECMAS: “We have enclosed a copy of a death announcement for Edward Cooper. Why are we doing this? To illustrate another death that may be attributed to the pressure Gestapo tactics of the Alberta maintenance enforcement ...Yes, maintenance is also after me. My employer has threatened to fire me even though maintenance enforcement says they can’t. What a joke. They phone up the employer and reveal my whole life’s history, hence my employer thinks I am the worst father in the world. Perhaps I will do the same‑a rope and a stool just like the Shawshank Redemption movie.”

Four ways to even the scales

1.  Problem: There is currently no system to rectify a decrease in income other than to take it back to court. When the payment is causing a serious financial burden on the debtor, it is unrealistic to then ask him or her to pay a lawyer to return to court and apply for a variance on the support order to reflect current income.

Solution: The “automatic recalculation process” now used in Newfoundland and Labrador is a new type of support order, which must be consensual to both parties. The debtor must submit yearly tax returns to a recalculation officer. If the income varies more than $5 up or down, the amount of support is automatically calculated and adjusted without anyone having to go to court.

2.  Problem: “Global [ambiguous] court orders.” In a file involving two or more children in which the support amount in the court order is not specific as to how much exactly per child should be paid (e.g.: °$200 for John, $200 for Mary,” as opposed to the ambiguous “$400 for the children, John and Mary”), the program considers these to be “global.” The full amount for all children will then be enforced until the youngest child finally becomes ineligible. Under the current system, theoretically, with two children 18 years apart, you could actually be paying child support to an ex‑spouse for a 40‑year‑old who may not have even seen her mother for 20 years.

Solution: MEP is building a Web site, “MEP Guide for Lawyers,” providing samples of orders that work well.

3.  Problem: “Adult child of the marriage.” If you have separated from a common‑law spouse, the terms of your support order will fall under provincial legislation; the end of child support is taken to be on the birthdate of the age of majority. If, however, you were married, the terms of your support order fall under the Canada Divorce Act which, in effect, means support must be paid until the adult child has quit school or attained a postsecondary degree, unless otherwise stated. This has proven to be a huge calamity for establishing eligibility when the adult child is jumping around, moving in and out, quitting school and going back.

Solution: This policy smacks of discrimination. Divorced, non‑custodial parents are the only group of people in Canada forced by law to pay for the education of a person who is old enough to run for political office. Everyone wants their children to go to university, but not everyone can afford it. No one should be forced to pay child support for an adult unless that adult child is truly disabled.

4.  Problem: “Federal child‑support guidelines” were brought in to establish a standard across the country. Studies examined the costs of raising children, and then these figures were inexplicably inflated. Furthermore, while the guidelines are already high, many judges use them as merely a starting point; extra expenses for children can go through the roof. And when an unfair court order is handed down, other judges are then reluctant to change it unless a serious change in circumstances has occurred.

Solution: Child support should be based on the actual cost of raising children. The state of Georgia, for example, has recently instituted a formula for calculating actual costs and taking into consideration the income and ability to pay of both parents, to be shared by both parents in a fair and equitable arrangement.

The great divorce cure‑not exactly rocket science

ECMAS (Equitable Child Maintenance and Access Society) has always advocated that the assumption of shared parenting be built into the divorce act. Currently, sole custody is assumed, and any variation must be established in court at great expense to both sides. In a 1997 study on “Child Custody Policies and Divorce Rates,” the Children’s Rights Council in Washington, D.C., found that states which obtained high levels of joint physical custody awards in 1989 and 1990 showed significantly greater declines in divorce rates in the following five years, compared with other states. Divorce rates declined nearly four times faster in states with high joint physical custody (known in Canada as shared custody), compared with states where shared custody is rare. As a result, the states with high levels of shared custody now have significantly lower divorce rates on average than other states. States that favoured sole custody, on the other hand, also had more divorces involving children.

“These findings indicate that public policies promoting sole custody may be contributing to the high divorce rate,” researchers concluded. “High levels of child support associated with sole custody may encourage divorce, because custody of children represents an asset for the custodial parent to the extent that child support payments exceed the cost of raising a child (Muhtaseb, 1995).”

A 1995 National Centre for Health Statistics report gives data on custody awards for 19 participating states for the years 1989 and 1990. “If one investigates the simple question, ‘who initiates divorce?”’ researchers note, “we find that from 1975 to 1988, in families with children present, wives file for divorce in approximately 2/3 of the cases each year.” The reason is simple indeed. If women can anticipate a clear gender bias in the courts regarding custody, they can expect to be the primary residential parent for the children. If they can anticipate enforcement of financial child support by the courts, they can expect a high probability of support monies without the need to account for their expenditures. Clearly they can also anticipate maintaining the marital residence, receiving half of all marital property and gaining total freedom to establish new social relationships.

States that favour sole custody in divorce may thus expect to see more divorce than states that encourage shared custody. On a practical level, shared custody makes it less likely that a parent can move to another city to eliminate interaction with the other parent. Because both parents provide for the child directly, child‑support payments may be somewhat lower with shared custody, reducing financial motives for divorce. Perhaps most significantly, shared custody also removes the capacity for one spouse to hurt the other by denying participation in raising the children.

“The correlation between shared custody and reduced divorce may have a simple explanation,” they conclude. “If a parent considering a divorce is told by an attorney that a judge will probably not permit him or her to relocate with the children, and that the other parent will continue to be involved, he or she may decide that it is easier to work out problems and remain married.”

- Candis McLean

Storms Mr. Fowler, “That is the problem: high collection rates at any cost. And the public is endorsing it through its ignorance. The [federal child‑support] guidelines are high, yet judges are using them as mere starting points and adding costs onto them. MEP is using draconian collection measures, many times against men with second families, so they are having trouble feeding them. If a man suffers a decrease in income, they will pull his driver’s licence or garnishee whatever income he has. They do that all the time.” In fact, last year between April and December, 18,310 motor vehicle restrictions were placed on Alberta’s 46,000 debtors; that is a whopping 40%.

Biases against non‑custodial parents must be brought to the attention of the public, Mr. Fowler maintains. “People think child support is automatically recalculated to reflect your present income and the income of the custodial parent, when, in fact, child‑support orders are never based on ability to pay, or the exspouse’s household income. Even if the ex’s new spouse is earning half a million dollars, this income is still not considered in the support order. It is always a percentage of the non‑custodial parent’s” wages, plus possible add‑ons.

“There is no way to extract cash from hundreds of thousands of households across Canada without creating victims. Dedicated people within the system have seen the casualties and are working toward enforcement that creates fewer victims. How do you do that? We don’t want people hanging themselves.” 

THE REPORT April 15, 2002

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