Garnishment of Wages in Matrimonial Disputes

Most employers are understandably reluctant to become involved in the personal affairs of their employees. Such involvement may be unavoidable, however, if an employee has unpaid child or spousal support payments.

Under The Enforcement of Maintenance Orders Act, the recipient under a support order, or the Maintenance Enforcement Office on their behalf, has numerous options to enforce the order. These include garnishment, driver’s license suspension and even imprisonment. The authority to garnish money includes the ability to garnish wages, which is where the employer becomes involved.

If an employee’s wages are garnished under The Enforcement of Maintenance Orders Act, the employer will be served with a Notice of Garnishment or Notice of Continuing Garnishment. At this point, the employer must respond appropriately, no matter how reluctant they may be to become involved in the employee’s personal affairs.

In the Notice, the employer will be referred to as the Garnishee. The recipient under the support order is referred to as the Claimant and the payor is the Respondent. Assuming the Respondent is in fact an employee, the first thing the employer is required to do is to provide a copy of the Notice to the Respondent employee.

The second, and more important, requirement on the part of the employer is to deduct the amounts outlined in the Notice from any moneys due and owing to the employee and to pay them to the appropriate office. The Notice should be carefully reviewed by the employer to ensure that they understand the extent of their obligation. It is important to note the difference between a Notice of Garnishment and a Notice of Continuing Garnishment.

A Notice of Garnishment is used in situations where the amount owing to the Claimant is one specified sum, past due. The Garnishee served with a Notice of Garnishment is obligated to pay over all moneys due to the Respondent employee until that sum has been paid. Once that amount has been paid, the Garnishee’s obligation is terminated.

However, the ongoing nature of maintenance payments makes them unique from other debts. Imagine the difficulty faced by a Claimant required to serve a new Notice of Garnishment every month after their former spouse failed to make their monthly maintenance payment. The Notice of Continuing Garnishment addresses this. A Notice of Continuing Garnishment binds the Garnishee with respect to amounts past due and maintenance payments that become due and owing in the future. The Notice of Continuing Garnishment will set out the amount due and owing for arrears in support and also the amount to be paid on an ongoing (usually monthly) basis. The Garnishee’s obligation is not terminated until they receive notice to that effect pursuant to the Act.

It is important for the employer to know that the entire amount of the employee’s wages is subject to garnishment. Employers who are familiar with the process of garnishment in the civil law setting may think that the employee is entitled to retain some minimum amount of his or her wages and that a certain amount is exempt from garnishment. This is not the case with maintenance orders. Unless there is a Court Order to the contrary, the entire amount of the employee’s wages must be paid over if required to satisfy the amounts outlined in the Notice.

A failure to deduct and pay over the proper amounts could result in a Court judgment against the Garnishee, requiring the Garnishee to pay the amounts that ought to have been paid to the Claimant.

Lastly, an employer may receive a Notice alleging that they owe wages to an individual when in fact they do not. For example, the Claimant may be mistaken about the Respondent’s place of employment and the Respondent may not in fact work for the employer. In this case, the employer must not simply ignore the Notice. The Act requires a Garnishee to file a Notice of Dispute if they do not owe money to the Respondent. A failure to act on the part of the Garnishee may result in a judgment against them requiring the Garnishee to pay the amounts due to the Claimant.

In light of the above, it would be ill-advised of an employer to “stay out of the employee’s business” in the case of enforcement of maintenance orders. A failure to respond appropriately can be expensive.