To ensure that family support orders are complied with, the Family Responsibility and Support Arrears Enforcement Act, 1996, provides for automatic deduction from income of individuals who must pay family support.
In the case of WSIB benefits, the Workplace Safety and Insurance Act, 1997 (WSIA) obligates the WSIB to make deductions from periodic or lump sum payments.
The purpose of this policy is to outline the types of benefits subject to a deduction, and the actions the WSIB must follow when Notices of Support Deduction Order or Notices of Garnishment relating to family support obligations are received.
Notice of Support Deduction Order
The WSIB deducts support payments from a worker's benefits when a Notice of Support Deduction Order (SDO) is received from the Family Responsibility Office (FRO). The amount deducted from either periodic or lump sum payments is usually not more than 50%, though it can exceed that amount.
If a court order of support was made before March 1, 1992, there is no SDO. However, the WSIB may have to enforce such a support order as if it is an SDO.
Notice of Garnishment
The WSIB deducts support or maintenance payments from a worker's benefits when a Notice of Garnishment is received from the Court. The WSIB pays the deducted amount to the appropriate Court or Sheriff, subject to the Wages Act. The support or maintenance demanded may include unpaid default payments or unpaid arrears accruing after April 1, 1985.
Pursuant to the Wages Act, 50% of any periodic payment due or accruing to a worker is exempt from diversion unless the Notice of Garnishment or the court order specifically states otherwise.
Up to 100% of a lump sum payment may be re-directed for a Notice of Garnishment.
Benefits subject to deduction
The following periodic or lump sum benefits are subject to an SDO or a Notice of Garnishment deduction
- loss of earnings benefits
- temporary total disability benefits
- temporary partial disability benefits
- permanent disability pensions
- permanent partial disability supplements
- future economic loss benefits and supplements
- non-economic loss benefits
- re-employment payments
- loss of retirement income benefits
- survivors' benefits
- disfigurement benefits.
Payments for arrears of benefits are also subject to SDO and Notice of Garnishment deductions.
Benefits not subject to deductions
No deductions are made under an SDO or a Notice of Garnishment from
- amounts owing to a worker as reimbursement for expenses related to a worker's health care or work reintegration activities
- personal care allowance
- independent living allowance, or
- contributions for loss of retirement income set aside under the WSIA.
When WSIB receives SDO and Notice of Garnishment
If the WSIB receives both an SDO and a Notice of Garnishment for the same support obligation, the WSIB makes full payment under the SDO, but makes no payment under the Notice of Garnishment until notified by the FRO that the SDO is suspended or terminated.
Notice of SDO
If an SDO is served on the WSIB, the WSIB must comply, even if not specifically named in the order.
The WSIB advises the worker, either by phone or in writing, that an SDO has been attached to the worker's benefits and that no benefits are payable to the worker at that time.
If WSIB is not paying benefits
If the WSIB is not paying benefits to the individual named in an SDO, Legal Services advises the FRO in writing within 10 days of receipt of the SDO, that no benefits are payable to the worker at that time.
Termination, withdrawal, or suspension of SDO
The WSIB complies with the SDO until the SDO or the support order to which it relates is formally withdrawn. If the SDO is for arrears only, the WSIB will comply with the SDO until the full amount is paid.
An SDO may be suspended by the Court. A suspension order only takes effect once it is filed with the FRO and the WSIB has been given notice. A suspension order does not affect other means of enforcing the support order, such as through a Notice of Garnishment.
Termination or resumption of WSIB benefits
The WSIB gives written notice to the FRO within 10 days following the
- termination or interruption of benefits, or
- resumption of benefits.
However, the SDO continues in force during any termination or interruption of benefits. Therefore, when payments to the worker resume, either in the existing claim or a new one, deductions under the SDO resume as well.
If the WSIB fails to deduct under an SDO without proper reason, the WSIB is liable to pay any outstanding amount to the FRO.
Notice of Garnishment
The WSIB honours the Notice of Garnishment until it expires or a court order compels the WSIB to stop.
If the worker disputes the Notice of Garnishment by way of a motion to the Court, the WSIB continues to honour the Notice of Garnishment until it is served with a court order terminating the garnishment. If the worker's motion results in a new garnishment amount, a new Notice of Garnishment is issued to the WSIB.
This policy applies to all benefits payable on or after February 15, 2013, regardless of when the WSIB receives the Notice of Support Deduction Order or Notice of Garnishment, for all accidents.
This document replaces 18-01-07 dated October 12, 2004.
This document was previously published as:
05-01-15 dated July 25, 1997
Workplace Safety and Insurance Act, 1997, as amended
Workers' Compensation Act, R.S.O. 1990, as amended
#18, January 28, 2013, Page 505