Who this guide is for
This guide is for you if you've been served with a summons for a committal hearing because you haven't paid maintenance (child and/or spousal support) that you owe. At a committal hearing, you'll be asked to explain why you haven't paid the support.
If you want to avoid going to jail, it will be up to you to prove to the judge that one of the following is true:
- Your income is lower, so the court should issue a new enforcement order that says you can pay less per month. (For example, you might have lost your job or become ill.)
- There was an error. This could happen if:
- you paid the support to the recipient but that person never reported the payment to the Family Maintenance Enforcement Program (FMEP), or
- there's a difference between what you think you owe and what the FMEP believes you owe (for instance, your child who is over 19 dropped out of school and the FMEP hasn't been informed).
- You were behind in your payments, but you've now paid what you owed (you should pay the FMEP instead of sending a cheque to the recipient).
- It would be a "grave injustice" to imprison you.
Remember that, at this point, your case is with the FMEP and the court, not with the person you owe the support to. That person usually can't keep you from going to jail, unless they've failed to report payments you've made to them.
The steps in this guide provide more information about how to prepare for court, how to apply to change either the original support order or the enforcement order, and how the judge might rule at the hearing.
Review the papers that came with the summons
Make sure the information is correct and no documents have been left out. You should have been sent:
- A summons
- The relevant maintenance/support orders or agreements filed with the court
- The enforcement order
- An account statement
A summons is the court document that tells you to go to court. You must go to the court named in the summons on the day and time listed. If you don't go, the court can issue a warrant for your arrest (in which case the sheriff will come and find you and bring you to court), or the hearing could go ahead without you, and an order could be made against you.
The relevant maintenance/support orders or agreements filed with the court
These orders say how much child or spousal support (as well as special expenses, if there are any) you must pay each month. You will have either an order made by a judge or an agreement you signed and filed with a court. Check to make sure that:
- The most recent order or agreement is attached.
- Any relevant orders are attached (if there's more than one that shows how much you must pay).
- The amount of support listed is accurate.
- The recipient is still eligible for the support. (For example, if one or more of the children don't live with the recipient, you may not have to pay support for that child or children.)
The enforcement order
This order would have been made at the Provincial Court default hearing that was held when you got behind in your support payments. It'll say how much you have to pay each month, as well as how many days in jail you must serve for each missed payment. You should have received a copy of this order in the mail after the default hearing.
You'll need copies of the financial statement and other documents (such as T-4s, income tax returns, or notices of assessment) that you filed at the time of the default hearing, if you did so. If your income has gone down since the hearing, these papers could help you prove it. If you don't have copies, the registry office at the courthouse where your case was heard may be able to give them to you.
An account statement
This statement lists the payments that were due and what payments you've made since the support order was filed with the FMEP. Any amount due at the time the order was enrolled should also be listed.
Check the most recent orders against the account statement to see that all of the amounts due match. Also check that every payment you made was credited to your account. If you weren't given credit for payments made, find your bank statements or other records that prove you made the payments and bring them to the hearing.
Check the FMEP's calculations about the jail time you face
Your enforcement order will say how many days in jail you must serve for each missed payment. Multiply the number of missed payments by the number of days listed to find the total days you might have to serve. The maximum you'd have to serve is 90 days.
For example, suppose the enforcement order states that in addition to your regular maintenance, you must pay $100 per month starting March 1, "and in default of each payment as ordered, you will be imprisoned for a period of 3 days consecutive per default." That means that the court will want you to serve 3 days in a row for each missed payment. If you have missed 10 payments, then you will be facing 3 x 10 days, or 30 days.
If you think a mistake was made in the calculations, or if you weren't credited for payments that you made, you'll need to prove this at the hearing. You can ask for more information about the FMEP's calculations at the first hearing.
Keep in mind that when you make a payment, the money goes first to regular maintenance, then to arrears (back payments owed), then to interest and fees. That means that if you made partial payments that didn't cover the entire amount of regular maintenance plus arrears, you would still owe money.
For example, if your default order says that you must pay $100 per month in arrears, and you owe $300 per month in child support, the total payment owed per month is $400. If you paid $350 one month, the first $300 goes toward regular child support, and only $50 goes toward arrears, which means you would still owe $50, or half of your arrears payment for that month.
Decide what to do
At this point, you have three options:
- You can contact the FMEP and try to work out a payment plan. This option might be best if a mistake was made, or if your income hasn't changed since the original support order was made, but you just got behind in your payments. Family duty counsel at your local courthouse might be able to help you with this process.
- If your income is lower (for instance, because you've been sick and lost your job, or because you have a different job that pays less), you can try to change the support order so you owe less money every month. (See Step 5 for more information on this process.)
- You can also try to change the enforcement order. You might choose to try and change the enforcement order if you didn't attend the enforcement hearing, so the amount you were ordered to pay is based on inaccurate information. Read Step 6 for more information on this process. (Changing the support order is a better option unless the order is from another province or you face other barriers to changing it easily.)
To decide what to do, you might want to speak to family duty counsel at your local courthouse. Their services are free, and they might give you advice, help you prepare forms and other documents, or help you negotiate with the FMEP. They can't represent you at the hearing, however. For that kind of help, you will have to hire a private lawyer. You might consider doing so, even if it's just for an hour or two. For more information on duty counsel or how to find a lawyer, see Get more help (Call or Visit) at the top of the page.
When you go to speak to the lawyer or to duty counsel, take all of the documents related to your case with you. Anyone who helps you will need to know where the original support order was made (in BC or somewhere else), and which type of court it was made in (Provincial or Supreme Court). This information makes a big difference when it comes to which process you'll have to go through to change the support order.
Negotiate (work out a payment plan) with the FMEP (optional)
You might be able to work out a payment plan with the FMEP (the FMEP can't negotiate the amount of arrears or support, but an enforcement officer can try to work out a payment plan with you). Family duty counsel at your local courthouse might help you with this process.
Apply to change the support order (optional)
The process you follow will depend on where your support order was made:
- If a court in BC made the order, you can use one of our step-by-step guides to apply to change it.
- If your order was made in another province or country, you'll have to follow the process outlined in the Interjurisdictional Support Orders Act (see Part 4 — Variation of a Support Order). Family duty counsel at your local courthouse or a private lawyer can help you with this process.
Apply to change the enforcement order (optional)
If you've already decided to try to change the support order, you probably won't need to change the enforcement order too.
To begin, download the forms you'll need from the Courthouse Services website:
- Notice of Motion in Maintenance Enforcement Proceedings
(PCFR Form 24)
- Statement of Finances FMEA (FMEAR Schedule; PFA073)
- Affidavit (optional — PCFR Form 17)
Once you've filled out the forms, go to the Provincial Court registry where the original enforcement order was made and file them. The registry staff will then give you a court date. Write that date on your Notice of Motion.
Next, serve copies of the forms and any other supporting documents on the FMEP (send them to the FMEP) at least seven days before the hearing to change the enforcement order. Don't send them late. (See the FMEP website for the fax number or mailing address.) You don't need to send copies to the person you owe the support to — your case is with the FMEP at this point, not with that person.
Prepare your case for the committal hearing
Prepare to bring any documents to the hearing that might support your case; for example, copies of the documents you filed to apply to change the order, doctors' notes, pay stubs, or Records of Employment (if you've lost your job). Also write down the names of the people you spoke to about your case and any court dates you have scheduled for your application to change the order so you can report this information to the judge.
Prepare to answer the judge's questions and to prove what you're saying. If you aren't trying to change the support order or the enforcement order, you'll have to prove at least one of these things to avoid jail time:
Bring documents that prove you made the payments.
Bring as much information as possible to help explain and prove that there's been a change in your circumstances. This will be the same information described in Step 6, including a Statement of Finances.
This last option is very difficult to prove. You have to show the judge that you've made the best effort you could to pay the support and comply with the enforcement order. The judge will determine whether you were "diligent, acted in good faith, and used all your resources to meet your obligations" (in other words, whether you tried hard enough to pay the support and arrears). If you did everything that could be reasonably expected of you, the judge may decide that it would be a grave injustice to put you in jail.
- You've paid what you owed.
- You can't pay what you owe because something significant that you had no control over has changed since the enforcement order was made (for instance, you might have lost your job or had health problems that kept you from working).
- It would be a "grave injustice" for you to go to jail.
Attend the hearing
The first court date is usually when you provide financial disclosure (information about your income and assets). Or you might begin to explain why you haven't been paying. The judge will ask if you're going to get a lawyer and what steps you're taking to pay what you already owe. You can ask the judge or the FMEP lawyer about how many days of jail you're facing and how that number was calculated.
If you've applied to have the support order changed, the judge might adjourn (delay) the committal hearing to give you time to get a new support order.
If the judge is satisfied that you couldn't have paid because there's been a change in your income since the enforcement order was made or that it would be a grave injustice to imprison you, the judge can:
- change the enforcement order (even if you haven't applied to do so), or
- set a date for another hearing (to consider changing the enforcement order).
If the judge isn't satisfied that you tried hard enough to pay the support or believes that you could have paid it, he or she will order that you go to jail.
If you're sent to jail
The judge will sign a Warrant of Committal for you to be jailed for a certain number of days, unless you can find a way to pay the amount of arrears that the judge sets. The number of days you must serve will depend on how many defaulted payments there are, up to a maximum of 90 days (see Step 2 to find out how to calculate the number of days in your sentence).
You'll usually be sent to jail right away, without the options of electronic monitoring or early release. However, if the amount you owe is paid in full, you can be released right away. Sometimes you can make arrangements to pay a partial amount and be released; to do so, you would have to negotiate with the FMEP, and then go before a judge and ask the court to amend the warrant.
If you miss the hearing
If you don't attend the committal hearing, the court might issue a warrant for your arrest. You could be arrested at your workplace or home and brought to court. The court could also go forward with the hearing without you, which means you wouldn't get a chance to state your case or ask for the enforcement order to be changed so that you can pay less on the arrears or even pay less than your regular support order on a temporary basis (usually until the support order can be changed), with the balance being added to the arrears until you can pay it or until the support order can be changed.
If you miss the hearing, you can apply to suspend, change, or cancel the committal order as long as you do so within a reasonable amount of time after the order was made. (However, it's very difficult to get the court to do so.) To do this, you'll need to complete a Notice of Motion in Maintenance Enforcement Proceedings (PCFR Form 24) to suspend, change or cancel the committal warrant, and include an Affidavit (Form 17) that explains why you didn't appear and why you haven't paid the money set out in the enforcement order.