Licence Suspension and Denial: Overview of a New Mechanism for Child Support Enforcement

4.0 LICENCE DENIAL AND SUSPENSION PROGRAMS IN CANADA

4.1 Drivers' Licence Restriction in Canada

Eight jurisdictions have drivers' licence denial or suspension programs: Prince Edward Island, Nova Scotia, Ontario, Manitoba, Saskatchewan, Alberta, British Columbia and Yukon. See Appendix B for an overview of the legislation in each jurisdiction. Table 3 shows the highlights of the legislation in summary form.

Table 3: An Overview of Drivers' Licence Suspension and Restriction Legislation in Canada

  Alta. B.C. Man. N.S. Ont. P.E.I. Sask. Yukon
Notice to payor                
1 notice
x
x
x
x
x
x
 
x
2 or more notices            
x
 
Payor can apply for an order to prevent or defer denial        
x
 
x
 
Notice to third parties                
Recipient of support    
x
x
 
x
x
 
Insurance    
x
     
x
 
Employer            
x
 
Actions                
Revoke (suspend) existing licence    
x
x
x
x
 
x
No renewal of existing licence
x
x
x
x
x
x
x
x
No issuance
x
x
x
x
x
x
x
x
No registration
x
 
x
x
 
x
x
x
Conditional licence      
x
     
x
Director can delegate power to initiate proceedings
x
x
x
 
x
 
x
x
Duration                
Licence
5 yrs
5 yrs
1 yr
5 yrs
5 yrs
 
1 yr
3 yrs
Registration
1 yr
 
1 yr
1 or 2 yrs
   
1 yr
1 yr

Source: Child Support Team, Department of Justice Canada

Alberta, British Columbia and Saskatchewan do not suspend existing licences, but withhold the licence when a person applies for its renewal or reissuance. In Alberta and British Columbia drivers' licences remain in effect for five years; in Saskatchewan the permit must be renewed annually. The Alberta MLA review of the Maintenance Enforcement Program (MEP) recommended that the MEP be required to give notice of the intention to direct suspension within 30 days of a default, and that the suspension occur within a prescribed period after notice has been given (Alberta, 1998). The rationale for this recommendation was that it can take up to five years for licence withholding to become effective, little immediate relief is provided to the creditor, and the debtor may have accumulated an overwhelming debt.

The MEPs in P.E.I., Nova Scotia, Ontario, Manitoba and Yukon have the authority to initiate the suspension and revocation of existing licences. However, it appears that licencees are not required to return their suspended licences.

Nova Scotia and Yukon provide for conditional drivers' licences under certain circumstances. In Nova Scotia the conditional licence may be for employment purposes only. In Yukon the situation is similar; the conditions may include restricted hours and places of operation.

Motor vehicle registration is cancelled or revoked in all jurisdictions but British Columbia and Ontario.

The MEP usually gives 30 days notice to the payor. In Yukon, there is a 60-day notice period; if the payor does not contact the MEP in that period, the Motor Vehicle Association is informed. In Saskatchewan a second notice is sent by registered mail if the first notification does not elicit a response from the payor; if the payor evades service, the process can be completed by means of an affidavit of evasion of service. The payor is sent one notice in all jurisdictions except Saskatchewan.

Unlike most jurisdictions in the United States, provincial/territorial legislation does not usually specify the number of months in arrears or the amount owing before the suspension/denial proceedings can begin. There are two exceptions. In Saskatchewan the payor must be in arrears for not less than three months; in British Columbia the payor must owe more than $3,000 and administrative enforcement must have been unsuccessful. In most jurisdictions, suspension/denial may be used at any stage of the delinquency, but in practice is used only when other methods have failed. In all jurisdictions, the decision to initiate the process is discretionary, not automatic. Documentation from several jurisdictions states that licence withholding or suspension is a last resort.

In Alberta, if the payor makes satisfactory arrangements to pay the outstanding amount in installments, the payor is permitted to have annual motor vehicle privileges. If the arrears are paid in their entirety, full motor vehicle services are reinstated.

The recipient of the child support may be informed of the decision to suspend or revoke in Manitoba, Prince Edward Island and Saskatchewan (and in Nova Scotia, if there is a domestic violence flag on the file). Insurance companies are not notified, except in Manitoba and Saskatchewan. Employers are rarely notified, except on occasion in Saskatchewan.

Unlike in the United States, licence restriction is purely administrative in Canada. The decision to withhold or suspend the drivers' licence is made by either enforcement officers, caseworkers or their supervisors or the director of the Maintenance Enforcement Program. The director of the MEP can delegate the power to initiate proceedings in all jurisdictions except Nova Scotia and Prince Edward Island.

Some legislation contains provisions for a review of the decision. A fact sheet from the MEP in British Columbia states that a payor can request a review if he or she was less than $3,000 in arrears at the time the notice was sent, or if the payor believes that the hold on the licence "would significantly reduce his or her ability to pay maintenance." A provision for a refraining order is found in Ontario. Upon receiving notice, the payor can apply to the court, within a variation proceeding, to request an order preventing the Family Responsibility Office from suspending the licence. If no variation proceeding begins within 20 days of the order, the refraining order terminates.[25] However, it can be extended by the court for one additional period of three months. In Saskatchewan, the court, on application, may order the administrator to cancel a suspension if the court is satisfied that a person's health is, or would be, seriously threatened by the suspension.

Four of the eight jurisdictions do not have electronic interface with the MVA information system. Requests for licence suspension are typically sent manually (by facsimile transmission).

As yet, there is no evaluation of drivers' licence restriction in Canada, although research is in the pilot planning stage. Reports from provincial and territorial officials and monitoring systems suggest that many payors make payment arrangements after a notice is sent. In Saskatchewan, for example, there were approximately 2,799 first notices sent in the first 44 months of the program (November 1996 to July 2000). During this time period, 52 percent (1,567) of the first notices required a second (final) notice. From the total number of first notices, 1,183 (42 percent) resulted in a licence denial (Saskatchewan Department of Justice, Maintenance Enforcement Office Statistics, July 2000). No data on the amounts collected were available. In Ontario, a fact sheet prepared by the Family Responsibility Office stated that $3.8 million were collected as a result of the initiative, that 2,833 suspension notices had been sent in 1997, and that 1,034 drivers' licences had been suspended for non-payment of support (Ontario Ministry of the Attorney General, 1998). If one assumes that the $3.8 million was collected from the payors whose licences were not suspended, an average of $2,112 was paid by each delinquent payor.

4.2 Passport and Federal Occupational Licence Revocation

The 1997 amendments to the Family Orders and Agreements Enforcement Assistance Act permit the withholding of licences that are under the authority of the federal government, such as passports and licences issued by the federal Department of Transport. These licence denial provisions apply only in cases when the provincial/territorial Maintenance Enforcement Program (MEP) has been unable to obtain the arrears using all other enforcement mechanisms available and when the payor has failed to meet three support payments or the total in arrears is at least $3,000. The provincial/territorial MEP must have informed the person in arrears of its intention to seek licence denial/passport revocation.

Since the legislation came into effect in May 1997, 4,174 valid applications sent to the federal government by the MEP's have been processed. Of these, 18 percent (742) have resulted in the suspension of a federal transport licence and/or passport with the remaining 82 percent (3,432) placed on a "control list" which denies issuance should the individual apply for a federal transport licence and/or passport. From the 742, 19 percent (140) of the suspensions were subsequently over-turned and the licences/passports were returned or reinstated. However, as of March 31, 2000, 538 passport suspensions, 40 licence suspensions, and 24 licence/passport suspensions remain intact. From the total number of people placed on the "control list", 5 percent (164) have been taken off the list. People who are taken off the "control list" or who have had their federal licence and/or passport reinstated have typically paid the arrears or made payment arrangement with the MEP (Department of Justice, Family Law Assistance Section).

The method of enforcing these requirements (refusal to return a passport is a summary conviction offence) is not yet completely established. In order to obtain estimates of the workload implications for the RCMP, the Department of Justice Canada entered into a Memorandum of Understanding with the RCMP to conduct a feasibility study of the process. Negotiations will determine how to deal with the complex issue of revoking passports when holders do not voluntarily return them.

[25] Refraining orders are only in effect for a maximum of six months, with a three-month extension by court order. Accordingly, the payor must complete the variation application within nine months or his/her driver's licence will be suspended.