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Court order does not always equal payment

Obtaining a court order for child or spousal support is only the first stage of a process that ideally ends with enforcement of the order and receipt of payment, says Toronto family lawyer Kathryn Hendrikx.

Chronic issues related to enforcement and unpaid support are discussed in a recent CBC article that says more than $3.7 billion is owed across Canada for such orders.

Hendrikx, partner with Brauti Thorning Zibarras LLP, says she welcomes the spotlight being placed on the issue, calling it a “significant barrier” in family law.

“Clients can spend a significant amount of their legal dollars to seek child support; to seek spousal support; to seek s. 7 expenses, which are all the extras like rep hockey, competitive swimming, and private school; when the client obtains that final order, it’s such a relief because the goal has been accomplished. If enforcement issues ensue, the client realizes it’s not the end of the book, but the beginning of a new chapter.”

The next chapter, says Hendrikx, is actually obtaining the support set out in the order.

“From the recipient side, enforcing the order can be just as expensive as actually obtaining it in the first place,” she says. “It can result in eroding of the client’s faith in the justice system, and it perpetuates the idea that it’s just easier to move along. There are many recipients – male and female – who say, ‘I’ll just manage it, it’s not even worth my time. I relied on the justice system and the family law lawyer to get the order, now I find out there’s a whole other retainer involved with actually enforcing it.’”

Provincial maintenance enforcement programs – called the Family Responsibility Office (FRO) in Ontario – are in place across the country to help enforce orders, says Hendrikx, though lacking resources make it a difficult task.

All maintenance enforcement offices have ways of forcing payors to comply, the CBC reports, including garnishments, property seizures, taking away licences and even imposing jail time.

“In theory, FRO is a phenomenally powerful tool,” says Hendrikx. “It really does work well. There’s a mechanism there, an infrastructure there and a body of collective knowledge there in terms of enforcement. But I think they struggle under huge case loads.”

Hendrikx says a streamlined system and more resources would likely go a long way in clearing the backlog.

When it comes to the $3.7 billion figure, Hendrikx says it’s not surprising, and in fact makes sense. Collectability is a major issue, she says, and one of the first areas she explores when meeting with a new client.

“We look at the ability to collect against how much is going to be spent,” she says. “We plan with the end in mind.  Thinking through the collection issues is good strategy – right from the outset.”

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