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  • #31
    Originally posted by arabian View Post
    MSMom - you are correct insofar as it applying to CRA. However, many people are self-employed and contract themselves to one employer as an owner-operator. Taxi drivers and truckers are just one example. Some categories even have collective agreements. They pay their own taxes and are not considered employees. This category does indeed get garnished from FRO/MEP. I think they closed that loophole some years back as everyone was becoming a "contractor."

    What is important in collection of support arrears is the wording of the order and the individual policies of the maintenance enforcement act.

    Most maintenance enforcement agencies don't even want to admit there are policy manuals which specify things. They are closely-guarded as far as I know and may even be referred to as "training manuals." I would dearly love to see one because I know they exist.
    You can indeed be a contractor for one company, but many companies, including ones that I have worked for imposed limits. One employer had a limit of 11 months of work for any contractor, as they had been successfully sued by employees in the states who claimed that they were defacto employees who were owed back benefits when they were terminated. But until they imposed that, they had contract employees who had been there 3 and 4 years.
    Last edited by DowntroddenDad; 11-25-2013, 11:21 PM.

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    • #32
      I know for myself I have to work for more than one person/company to be able to file income tax as self-employed.

      The oilfield industry is rife with self-employed individuals who work for only one company. Welders, hot-shot drivers, truckers are just a few - all owner-operators. Commonly referred to as Proprietorships. You have a GST/HST number as well as Workers' Compensation account.

      I believe Mess would have more information on employment classification as it relates to CRA. Perhaps he will chime in here later.

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      • #33
        FRO should enforcing order. They get lazy sometime but you can contact your local MP and complane about this. This will then get to take their driver license and also put a bad credit on his credit history.

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        • #34
          I am in almost an identical situation. I haven't posted before but have followed this forum for years. The information I found here has been invaluable.

          One piece of advice I would offer is it is essential that you read the actual Acts. All the rules are clearly written there. Whenever you interact with an agency such as FRO, if you can quote the actual section of the applicable Act supporting your position

          For your problem, in the Family Responsibility and Support Arrears Enforcement Act
          Under definitions income source is clearly defined.

          “income source” means an individual, corporation or other entity that owes or makes any payment, whether periodically or in a lump sum, to or on behalf of a payor of,
          (a) wages, wage supplements or salary, or draws or advances on them,
          (b) a commission, bonus, piece-work allowance or similar payment,
          (c) a payment made under a contract for service,


          The work arrangement that your ex has created with his former employer in order to try to avoid garnishment falls under c. The company must continue to garnish.

          The consequence if they don't is also clearly cited under section 26.7
          Liability
          (7) An income source is liable to pay to the Director any amount that it failed without proper reason to deduct and pay to the Director after receiving notice of a support deduction order and, in a motion under subsection (3), the court may order the income source to pay the amount that it ought to have deducted and paid to the Director. 1996, c. 31, s. 26 (7).

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          • #35
            Good post Winter. Thanks for the clarification.

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            • #36
              When dealing with any issues with FRO, I have found it is best to have a paper trail. Fax them a letter clearly stating your case number and all the relevant facts. Give them any information you have that will help with an enforcement action. Write down all of the contact info for the company your ex provides services to.

              Is your ex in persistent arrears? Under the Family Orders and Agreements Enforcement Assistance Act "persistent arrears”, in respect of a support order or support provision, means

              (a) arrears in any amount where the arrears are due to the failure to make in full the payments required in respect of any three payment periods, within the meaning of the support order or the support provision, or
              (b) accumulated arrears of $3000 or more.

              If he is, tell FRO he is. Clearly, with details of how he meets the definition and ask that they suspend his drivers license.

              Quote Section 67.1 of that Act and ask that they follow it...

              67. (1) Where a debtor is in persistent arrears under a support order or a support provision, a provincial enforcement service may apply to the Minister that the following actions be taken against the debtor:
              (a) that no new schedule licences be issued to the debtor;
              (b) that all schedule licences held by the debtor be suspended; and
              (c) that schedule licences held by the debtor not be renewed.

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              • #37
                Thank you Arabian. It was my first post ever. I've been reading for years and was too uncertain/nervous to post but this thread is about something I know much too much about

                How I wish I knew in the beginning what I know now.

                Dealing with an ex who is self employed, who won't disclose and who won't follow court orders is very stressful and daunting.

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                • #38
                  From a CRA point of view, to be truly self-employed you need more than one customer. I understand the point with the taxis, but owner-operators are self-employed by nature of owning the vehicle they operate. Operators generally work for more than one owner.

                  CRA rules on self-employment are pretty clear. I guess my point in general was that if his employer is choosing to pay him this way under these circumstances, they too are violating CRA rules. Employers pay EHT, WSIB, CPP and EI all based on the employment earnings of their workforce.

                  Enforcement issues aren't something I've had to deal with yet for a self-employed contractor. But, the reason we issue the yearly docs to them and the government is so the government can launch audit if necessary. That's for taxes though.

                  From the employer point of view, an order against an individual may not be enforceable against the contractor due to a simple name issue. As a business I receive the invoice from ABC Company, and the cheque is written to ABC company, I don't know that I could garnish ABC Company's payment with an order written for Mr. Smith. Garnishment orders are also sent to HR and Payroll. Contractor payments come out of Accounts Payable. Depending on the size of the company, those two departments could be a world apart.

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                  • #39
                    That is why the wording in the Act reads "to or on behalf of a payor"

                    Cheques to ABC company are payments on behalf of a payor.

                    The poster must inform FRO of the name of the company her ex formed to avoid garnishment and that he is using to collect payments on his behalf

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                    • #40
                      Oh how I would like to see the FRO Operations Policy Manual.....

                      Winter keep posting - we need your knowledge and input as well as your experiences.

                      WE are like the Borg - we like to assimilate... resistance is futile.....

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                      • #41
                        I'm thinking here from the Employer point of view of enforcing that order. Just trying to problem solve the way past any possible barriers.

                        If it's a large company, it could be a matter of logistics. You'd be surprised at how little us accounting folk talk to our coworkers.

                        What if A/P doesn't know Mr. Smith and ABC Company are actually the same person? Now, a small company like where I work, I'd definitely know one was the other, because I handle both. But we do have two others that handle A/P - neither would know all our field employees by name. Our supervisor though is a control freak, and she'd be all over that...a stickler for the rules. But, a huge firm where A/P in one office, and Payroll another....I'm not sure there would be an immediate connection. Not that there shouldn't be, I just see it as something that would typically fall through cracks. Especially big cracks made by bosses trying to look out for the employee that's trying to avoid the garnishment in the first place.

                        They should enforce it of course, absolutely. I would wonder if they know to?

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                        • #42
                          What a great wealth of information! Winter, arabian and MS Mom, you have helped me a great deal. I'm going to fax FRO today with all the relevant information. I'm also going to get the bank account info from my lawyer, regarding his new company. His company name is his own initials, he works for this company only, still has their email address, is on their directory of employees and has their work cell phone that he was given three years ago when he was an "employee". When you call head office and ask if he's an employee, they say yes and give you his cell phone number. I honestly don't get why the company would put themselves at risk, when I'm sure they have hundreds of employees across Canada, who are also in the position of having their salary garnished.

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                          • #43
                            Unfortunately in large companies somethings get lost or forgot about. I also work for a large corporation and am always shocked when a bill doesn't get paid or a Timesheet is missed so an employee doesn't get paid. It doesn't happen often, but it does happen. If there was a blurp in his employment and then he came back, the accounting department or even payroll may not notice. If the company is as large as you say it is, most likely those who do the payroll or AP have no idea who he is, to them he is just a number and could have a different number now due to his blurp in employment.

                            Good luck!!!

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                            • #44
                              Thanks, Berner. Perhaps that's what went wrong, but I knew something was up when I started getting paid only once a month, and suddenly no arrears. He also failed to tell me that he no longer had benefits, and only found out when I went to get my daughter a prescription and the claim was declined. There always seems to be some sort of hiccup where my ex is concerned.

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                              • #45
                                It is highly likely that the scenarios MS Mom and Berner Faith describe occurring in large companies is what is happening in KMFs case

                                But it is important to be aware that it is possible that someone in the company is colluding with her KMFs ex to avoid garnishment. Don't blindly assume it is an honest mistake and feel safe in that assumption. Know it is possible he is being protected and act to address it

                                The deceit involved in the divorce process has shocked me terribly. People like my ex's bankruptcy trustee, who is considered an officer of the court, have outright lied and refused to follow rules they are required to by their profession. If I had only know about the BIA Bankrupt and Insolvency Act years ago and had read it then, I would have known the rules the trustee was breaking on my ex's behalf at the time they were being broken and could have acted.

                                It could be an honest oversight...but don't be surprised and too distressed if it isn't. The company as an entity wouldn't be doing the colluding. It would be a friend of KMFs ex who has a position within the company to protect him. There is no real risk because they can claim it was an honest mistake. That is why it is very important to have a paper trail proving that they have been informed of all the relevant details so that they cannot plead ignorance later to evade consequences.

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