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Family Responsibility Office to Pay $7,500 in Costs for its “Aggressive Enforcement Action” Against Dad

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Family Responsibility Office to Pay $7,500 in Costs for its “Aggressive Enforcement Action” Against Dad

In a case called DeBiasio v DeBiasio the father was in arrears on his support payments of $1,800 per month for his three children, one of whom lived with him. Eventually, when the other two children also moved in with him in July of 2015, he started negotiating with the mother to change his child support obligations. Together, they signed a court form in late August asking for a court date for them to formally change the child support on consent.

However, the matter of the father’s arrears had already been sent to the Family Responsibility Office (FRO) for enforcement, and it had started to take the authorized steps to force him to pay. To this end, he received a letter from a FRO caseworker around this same time, advising that he was being reported to the Credit Bureau.

This meant that – to the father’s frustration – both the FRO’s enforcement steps and the parents’ court-supervised attempts to settle issues around child support were proceeding in tandem, but independent of each other.

The court motion stalled for unrelated reasons; meanwhile, the father learned that the FRO had taken steps to garnish his wages. When his lawyer wrote to the FRO to advise that the consent motion was pending, the caseworker claimed that her hands were tied since the order to pay child support was still “on the books”. Soon after the father learned that the FRO was taking steps to have his driver’s license suspended. Some of his lawyer’s many attempts to correspond with the FRO directly garnered no response.

Eventually, the father managed to get a court order, directly the FRO to refrain from taking additional steps against him.

The father then asked the court to order the FRO to pay his legal costs – and succeeded.

Here, the court’s task was to balance the FRO’s mandate to enforce all support orders that are filed with it, against the individual interests of the father. Since the Director of the FRO has some leeway in choosing the manner of enforcement in any given situation, the test is whether the Director had exercised that discretion in a reasonable manner in the father’s particular case.

After reviewing a few prior cases in which the Director of the FRO had been ordered to pay costs, the court noted that they tended to arise in cases where there were “aggressive enforcement actions on the part of the FRO” despite the existence of a real and substantial dispute between parties that they had taken steps to resolve with the court. This was precisely the case here. As the court put it:

In this case it was made clear to the FRO caseworker that there was a dispute over the amount of arrears owing. It was made abundantly clear that there had been a material change because of the move of the children. While I understand that FRO has a mandate to enforce, it seems to me that insisting on enforcement by way of licence suspension, when it is likely that the matter will be before the court within a very short period of time, is an unreasonable exercise of the Director’s mandate to enforce.

Having been made aware of the scheduled consent motion, the FRO should have allowed the process to go forward before taking any further enforcement action. Its failure to do was unreasonable. The court also chastised the FRO for failing to provide an adequate level of communication, since it repeatedly failing to respond to the communications from the father’s lawyer. This, the court found, was in breach of the FRO’s duty to provide timely and meaningful responses to paying parents and their lawyers.

The court ordered the FRO to pay the father $7,500 in costs.

For the full text of the decision, see:

DeBiasio v DeBiasio, 2016 ONSC 2253 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com