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Posts from the ‘Family Responsibility Office, FRO’ Category

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

4 Ways To Enforce Child and Spousal Support Orders in Ontario – video

 

Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy.

This video reviews some important points to consider including tips for working with FRO (the family responsibility office).

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.

Enforcement of Child Support in Ontario – video

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this legal video, we review enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

The FRO uses different ways to get the payments that are owed. It can:

• get the payments directly from the parent who is supposed to pay support

• have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)

• register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes

• garnish (take money from) the bank account of a parent who fails to pay support

• garnish up to 50% of a joint bank account that he or she has with someone else, or

• make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

• suspending their driver’s licences

• reporting them to the credit bureau so that it will be difficult for them to get loans, or

• canceling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.

Top 5 (or so) Little-Known Facts About the Family Responsibility Office

deadbeat

Top 5 (or so) Little-Known Facts About the Family Responsibility Office

I have written before about the role and mandate of the Family Responsibility Office (FRO). While that blog piece outlined the general duties (which includes the collection, distribution and enforcement of child and spousal support payments), there are some aspects of the FRO’s role with which many people may not be familiar.

Here are some facts about the FRO that may surprise you:

1) The FRO is not just about support.

The FRO’s role is not limited to enforcement child and spousal support obligations: It also enforces private written domestic contracts such as separation agreements, marriage contracts, cohabitation agreements, paternity agreements and family arbitration agreements (provided these have been filed with the Ontario Court of Justice or the Superior Court of Justice (Family Court) beforehand.

2) But, there are some things the FRO will not touch.

There are certain support-related aspects that the FRO will not get involved with. These include:

a. bringing motions to the court to change the amount of support owing; and

b. getting involved with any issues relating to entitlement to support, or custody or access.

3) The FRO can actually reduce the support owed, sometimes.

Under the governing legislation, the FRO has the discretion to reduce or even terminate the amount of support that it will enforce in narrow circumstances, namely where:

a. one or more kids ceases to be eligible for support;

b. where the parents agree in writing that a “terminating event” has occurred with respect to their kid or kids; or

c. where the parent entitled to receive support fails to respond to the FRO within 20 days.

4) The FRO can cast a wide net.

Given that it has enforcement agreements with every Canadian province and territory, with every state in the United States of America, and with 31 countries, the FRO can enforce child and spousal support payments even in situations where one party lives outside Ontario. This is specifically authorized under the Interjurisdictional Support Orders Act, 2002.

5) It has some tricks up its sleeve.

Among the more usual enforcement actions that the FRO can take against you if you are in default of your payments (e.g. garnishing your wages), there are some perhaps-unexpected ones. These include:

a. suspending your Canadian passport;

b. suspending certain federal licenses (e.g. a pilot’s license or maritime or navigational license);

c. reporting you to your professional or occupational organization; and

d. even seizing your lottery winnings!

6) It has a “Most Wanted List” (sort of).

The FRO, through the Ministry of Community and Social Services website, maintains a public list of what it calls “missing, irresponsible parents who have defaulted on the payments owed to their kids”. Located at www.goodparents.pay, it can display a wide array of information about defaulting payors, including:

a. name

b. physical description (height, weight, hair and eye colour)

c. approximate age

d. last known address

e. usual occupation/trades, and

f. language(s) spoken.

7) Even bankruptcy doesn’t do it.

It may seem tempting to declare bankruptcy to avoid the long arm of the FRO; however, your support arrears merely become a claim that is made against your estate, with the FRO dealing directly with the bankruptcy trustee like any other creditor.

Do you have questions about how the FRO can help you get the support to which you are entitled?

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 our main site.

 

If You Are Getting Too Much Support, Are You Required to Speak Up?

overpayment

If You Are Getting Too Much Support, Are You Required to Speak Up?

In a recent case called Gray v. Gray, the Ontario court considered whether a mother had an obligation to essentially take proactive steps to cut off her own child support, in a situation where the father had been overpaying for years.

In this case, the couple had two children together. When he was still a relatively young man, the father became disabled with chronic pulmonary disease. He went on the CPP Disability Benefit and received a subsistence income of about $14,000 annually. Based on this income, he had been paying the mother $211 per month since 1999 in child support. The mother, meanwhile, was gainfully employed the entire time.

In 2013, the father asked the mother to consent to an order terminating his support obligations, but she refused. He was therefore forced to apply to the court, which he did on a self-represented basis and with great difficulty, since he lived in a remove community which was 4.5 hours from Thunder Bay, the nearest city.

Looking at the facts, the court determined that both children had ceased to be eligible for support back in 2006 – i.e. 8 years earlier. Yet the mother had nonetheless continued to accept the disabled father’s monthly child support payments, even though they amounted to a good portion of his income.

Given that support recipients are legally entitled to have support amounts increased when new facts are discovered retroactively, the court pointed out that reverse is also true. It added:

The law of child support has evolved to the point where it is presumed that a parent knows when he or she is obligated to support his children and the amount of that support.. Thus it is incumbent upon the parent who has knowledge of the facts to act upon that knowledge. …

It would appear that “what is sauce for the goose is also sauce for the gander.” A mother who is aware that her children no longer qualify for support should act upon that knowledge. …

The court accordingly determined that the father had overpaid by about $16,000 over the years, starting in 2006. Finding no good reason to do otherwise, it ordered the mother to repay this mount, and also directed the Family Responsibility Office takes enforcement steps as necessary.

For the full text of the decision, see:

Gray v. Gray (2014), 2014 ONSC 1959

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 our main site.

74-Year Old Mine Worker Hides Almost $175K in Salary – Should He Pay Retroactively?

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74-Year Old Mine Worker Hides Almost $175K in Salary – Should He Pay Retroactively?

In a recent Ontario case, the court had to grapple with deciding whether an elderly husband who had made an unusually high income in one year – but who was now living on very limited means in a basement apartment – should have to pay retroactive support to his unemployable wife.

The couple was married for almost 20 years. At the time of their separation, the wife was 51 and the husband was 74. Since that time, the wife had developed various medical issues including possible Parkinson’s disease, which likely rendered her unemployable. She was currently living with and taking care of her elderly father, doing the cooking, laundry, cleaning. She had no pension and no savings to speak of, and lived very frugally.
The parties reached a simple negotiated separation agreement requiring the husband to pay about $800 per month to the wife. It was based on his declared income of about $36,000 per year.

However, about a week after signing the separation agreement, the husband received a job offer to temporarily work the “tool crib” at the local Mine. However, the position lasted longer than initially expected and for the year 2012 he earned almost $173,000 including his pension.

The wife learned of the husband’s job indirectly, because (as the court put it), they had “the same circle of friends. Her lawyer’s request to the husband for financial disclosure went unanswered, and the wife was forced to apply to the court for retroactive spousal support as part of their divorce.

The court considered the various factors that allowed it to order retroactive spousal support – including (among other factors) the wife’s past need and the husband’s ability to pay, as well as the underlying basis for support, any delay in claiming it, any undue hardship to the support-paying husband, and also any blameworthy conduct on his part.

In this case, the husband had an obligation under the separation agreement to disclose any change in his financial circumstances within five days. The wife had asked the husband for such disclosure but he had ignored her lawyer’s requests. She was accordingly left with no alternative but to go to court.

There was also evidence that the husband had reckless spending habits. The court described it this way:

It became clear during the course of the evidence that the [husband] has never met a dollar that he did not care to spend. Even after being unemployed for a considerable period of time and earning a substantial income in 2012, the [husband] did not see fit to put aside any money for himself let alone for his estranged spouse. In his words, he worked in a “high paid trade and they spent a lot of money on trips and other things”. …

Finally, the husband also claimed to be heavily in debt, but had no proof. The court added that the husband “went on to say that the balance of the money was spent on lifestyle expenditures for meals and restaurants, buying rounds in the union hall and some gambling in Sault Ste. Marie.” His lack of financial disclosure was also “worthy of criticism”, it found.

Nonetheless, after evaluating these circumstances, the court added that the now-76-year old husband was living in his sister’s basement apartment, and would never again be employed in any meaningful way. His assets consisted of an old truck worth about $2,000, and about $37,500 per year in pension.

This being the case, he could not now and would never be able to afford to pay the retroactive spousal support that was being claimed by the wife. The court accordingly declined to make the order. (However, in light of other circumstances, including the terms of the separation agreement, it did order the husband to pay the wife about $1,000 per month, going-forward).

Should the husband have been ordered to pay up retroactively, in this case? What are your thoughts?

For the full text of the decision, see:

Dufour v. Dufour, 2014 ONSC 166 (CanLII) http://canlii.ca/t/g2nh8

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.

Top 4 points about enforcing child and spousal support payments – Video

 

 

Wednesday’s Video Clip: Top 4 points about enforcing child and spousal support payments

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video will review four points to consider.

Husband Reneges on Post-Separation House Transfer – What Do Courts Do About Broken Promises?

taxiShould a Cab Driver Lose His Licence for Failing to Pay Support?

As many of you know, in Ontario the government’s Family Responsibility Office (FRO) is charged with the task of helping enforce spousal and child support orders. To do this, the FRO has been given an arsenal of enforcement mechanisms to be used against the parent in default of a support order – including garnishing wages or income tax refunds, having a lien placed on property, and suspending his or her passport.

But one of the more routine enforcement mechanisms is for the FRO to suspend the driver’s license of the defaulting payor until he or she has paid the support arrears or has satisfied other terms of the support order.

Certainly this adds a significant level of inconvenience to the payor’s life, and likely provides a very effective incentive for paying arrears and support. But what happens if that person relies on being able to drive, as a means of earning his or her livelihood?

This was precisely the quandary in the recent Ontario decision in Dumais v. Dumais. There, the father had been ordered to pay about $300 in monthly child support, based on his income. However, he never voluntarily paid that support and quickly fell into arrears which over time totalled about $40,000. The mother applied to the FRO for assistance to enforce the support order and collect the arrears.

The matter came before the court when the father asked to have the arrears rescinded, and to have his support reduced to zero. In this context, the court had to consider whether the FRO’s suspension of the father’s driver’s license was reasonable in the circumstances.

The court observed that if it allowed the license suspension to continue, then the father would lose his job as a taxi driver and have no source of income whatsoever. This, the court found, was counter-productive and moreover would prevent the father from driving to exercising access to his child (who was in the custody of the mother).

Instead, the court arrived at something of a compromise: Rather than allow the FRO to suspend the father’s license for arrears – which it said would be “catastrophic” – it essentially suspended the FRO’s suspension in connection with the arrears only. The father was not totally off the hook, however: Any going-forward support would still be subject to the FRO’s enforcement mechanisms. The husband’s support obligations were reduced slightly, to $267 per month, based on his most recent income levels.

Dumais v. Dumais, 2013 ONSC 5949  http://canlii.ca/t/g0q8x

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.

Is the Family Responsibility Office Culpable for its Screw-Ups?

 

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Is the Family Responsibility Office Culpable for its Screw-Ups?

In a prior blog Top 5 Tips for Dealing with the Family Responsibility Office I gave some tips on how to effectively deal with the Family Responsibility Office (FRO), which is charged with encouraging and enforcing timely payment of court-ordered support in Ontario.

The experience of having the FRO involved comes with its hassles: My clients often complain of delays, confusion, and frustration in dealing with the FRO whether they are on the paying or the receiving side of the equation. Part of this is likely systemic: the FRO reports handling about 180,000 cases each year, and as a government body is hampered by all the red-tape that seems to inherently afflict bureaucratic offices.

But the recent Ontario decision in Ashak v. Ontario (Director, Family Responsibility Office) offers the unexpected – and one might say refreshing – possibility that the FRO could be held liable for its inefficiencies and mistakes, whatever their origin.

There, a support order that had been filed with the FRO obliged the husband to pay child and spousal support to his former wife. Rather than pay, he left the country, most likely fleeing to Iraq where there was no agreement between that country and Canada to reciprocally enforce these kinds of support orders. The wife was forced to turn to social assistance.

Fortunately, at one point the husband returned briefly to Ontario; at this point the FRO, in conjunction with the federal government, was able to confiscate his passport using its power under Canadian support-enforcement legislation.

Yet it all went wrong for the wife a few months later: despite the fact that the husband filed some questionable documentation in support of his bid to have the passport reinstated, the FRO inexplicably authorized the federal government to take that step anyway. This allowed the husband to abscond from Canada once again, still not having paid any support. He is not expected to be seen in Canada again.

The wife then took an unusual step: she sued the FRO for (among other things) gross negligence and breach of fiduciary duty in its handling of her case. The FRO asked the Ontario court to summarily dismiss the wife’s claims against it, claiming the wife has no standing as a private citizen to sue a government body.

The court dismissed the FRO’s application. Perhaps surprisingly, it concluded that the FRO “owes a duty of care to the public generally.” A person in the wife’s position, who had an active file and who had been proactive in providing the FRO with information, had been negatively impacted by the FRO’s mistake. The economic harm she and her children suffered was foreseeable: Had the FRO done its job correctly, the husband would not have had his passport returned, and the wife would have been able to get her support order enforced against him.

The matter was ordered to proceed to trial; that hearing will involve consideration of the FRO’s proper standard of care. I will report on that decision as soon as it is handed down.

For the full text of the decisions, see:

Ashak v. Ontario (Director, Family Responsibility Office), 2012 ONSC 1909 http://canlii.ca/t/frqmq

Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375 (procedural decision) http://canlii.ca/t/fxsjq

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.

What “Material Change” is Not: Some Real-Life (and Perhaps Surprising) Examples

change

What “Material Change” is Not: Some Real-Life (and Perhaps Surprising) Examples

Recently we wrote about the concept of “material change” in Separation Agreement Rolled into a Court Order – “Material Change of Circumstances” Still Required which involves the notion that a court-imposed order requiring a parent or spouse to pay support may have been fair at the time it was handed down, but subsequently becomes unfair due to unforeseen circumstances. Where a later court finds that such “material change” has taken place, it may have the authority in the right circumstances to vary the initial order accordingly.

This determination of what constitutes “material change” is not always straightforward. Indeed, some scenarios may intuitively seem to qualify on first blush, but on closer examination turn out not to meet the legal standard at all.

Here are a handful of recent and older cases that illustrate this point:

• Early retirement

In Innes v. Innes, the 62-year old support-paying husband decided to take voluntary early retirement, which meant his income would decrease from $200,000 to about $70,000 per year. Finding that he had done so for “lifestyle reasons” related to his new wife and a fondness for golf and vacations (rather than for unexpected health reasons, for example), the court declined to reduce or terminate the $2,000 in monthly support he was obliged to pay his former first wife of 26 years, finding there was no “material change” in the circumstances.

• Bankruptcy

In a case called Brothers v. LeBlanc, the common law husband’s’ bankruptcy was not enough to persuade the court to reduce his obligation, embodied in a separation agreement, to make $1,000 monthly mortgage payments and to pay off a $129,000 mortgage on the former matrimonial home. While accepting that the man’s snow-removal and heavy-equipment operating business had experienced a significant downturn since the agreement was signed four years earlier, the court found that the man was in good health and that the local construction was booming; he should be able to earn close to $90,000 a year if he put his mind to it.

• Supporting a new family

In Couvillon v. Couvillon, the husband failed in his bid to have his child support obligations under a separation agreement reduced. While it was true that he now had new financial responsibilities arising from his decision to marry a second time, his plans to do so were already in place when the separation agreement was negotiated with his first wife. As such, there was no “change” in the legal sense, since his added responsibilities were actually very foreseeable.

As these cases illustrate, “material change” is not an easy concept to pin down. We can help navigate the law and apply it to your specific situation.

For the full text of the cited decisions, see:

Innes v. Innes, 2013 ONSC 2254 http://canlii.ca/t/fx6rv

Brothers v. LeBlanc, 2013 ONSC 4073 http://canlii.ca/t/fzcm6

Couvillon v. Couvillon (1996), 18 R.F.L. (4th) 316 (Ont. Gen. Div.)

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.