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Some Points About the Family Responsibility Office – Its Role and Powers

 

Some Points About the Family Responsibility Office – Its Role and Powers

In a Blog post a few months ago Top 5 Points About Enforcing Child and Spousal Support Payments http://bit.ly/HaiXpC , I briefly mentioned the Family Responsibility Office (“FRO”), the role of which is to process child and spousal support orders, and to provide enforcement support for recipients through various means.

In this first of two posts, I thought it would be worthwhile to revisit and hone in on the FRO’s role and processes, and highlight a few points to note:

• Payors who are liable to make support payments – either by court order or domestic agreement – must make those payments directly to the FRO, not to the recipient.  A direct payment to the recipient will not be credited and may result in the FRO taking enforcement action against the payor, with an administrative fee being added.

• Conversely, the FRO does not make a payment to the recipient until the payor has remitted the corresponding payment to the FRO.  As such, the FRO will not pay the recipient for any missed support payments on which the payor has defaulted.

• The FRO has a wide array of available enforcement mechanisms in its arsenal. For example, if a payor is delinquent in making the required support payment, the FRO may take the following steps against him or her (after giving the payor notice in writing):

•garnishing bank accounts (i.e. taking the money owed directly from the payor’s bank account);

•reporting the payor to the credit bureau;

•suspending the payor’s driver’s licence, Canadian passport and federal licences (such as a pilot’s licence);

•placing a lien on the payor’s personal property by registering the amount owed with the Ontario government;

•issuing a writ of seizure and sale for property owned by the payor (any profit from the sale of the property is used to pay the support arrears);

•reporting the payor to his or her professional or occupational organization(s);

•seizing any lottery winnings to which the payor is entitled; and

•starting a “Default Hearing” where the payor is required to explain the default in support payments, and may be liable to serve up to 180 days in jail.

• Changes to support orders or domestic contracts can be made in certain circumstances, for example, where the payor spouse’s income has changed, if one of the spouses has remarried, or if the dependent child has graduated from school or has obtained a job.  In cases where one or both the parties wants to change the support order , the parties will have to apply to the courts by way of a Motion to have the desired changes made.  In cases where the support is being paid under a domestic contract that needs to be changed, the parties will have to negotiate the changes and file the amended contract with the Ontario Court of Justice or the Superior Court of Justice (Family Court), as the case may be.  The FRO does not have the ability to make these kinds of changes.

• Ending the obligation to pay support is also subject to certain processes.  At some point, the payor spouse may form the opinion that he or she should no longer be responsible for paying support.  For example, although Ontario laws do not stipulate an automatic end date for child or spousal support payments, the entitlement to child support generally ends when the child turns 18 years old (or for a longer period if he or she is attending school full time).  Also, a court-imposed support order or a domestic contract may set a “terminating event” date, which stipulates an end date for the support.  This can include a child’s graduation from university, for example.  In cases where no end date is stipulated, the payor and recipient spouse must agree on an end date, or else may have to appear before a court to have a date determined.

• Effective November 21, 2011, all support payors and recipients are assigned a dedicated case contact person, whose role is to become familiar with the specifics of the individual case and who can answer questions.  These case contact persons replaces the call centre staff.  Additional initiatives are also in place as of late 2011 to allow for more timely and case-specific assistance and information to new payors and recipients under the auspices of the FRO program.

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

 

 

Double Trouble: Husband Loses Bid to Have Duplicate Court Orders Set Aside

Double Trouble: Husband Loses Bid to Have Duplicate Court Orders Set Aside

In a recent decision called Gray v. Rizzi, a husband was unsuccessful in having either of two contradictory and duplicative court orders – one less advantageous than the other – set aside. Despite the (perhaps surprising) outcome, the decision raised an interesting point about the court’s jurisdiction in dealing with family law orders that are mistakenly obtained.

The matter started routinely enough: the wife had sued the husband for child and spousal support. When he failed to comply with an order to file his response and financial statements within 30 days, the wife was allowed to proceed without him on a “default” basis, and obtained a court order. Later, the parties also attended in court together on another date, and an order was issued that day, too. In the end, the wife had inadvertently obtained two conflicting court orders in her favour – one that imputed the husband’s income for support purposes as being $90,000, and the other establishing his income at $133,000.

After she realized her mistake, the wife had the second, higher-income order confirmed; the husband was accordingly ordered to pay spousal and child support based on an earnings of $133,000, which he did. However, he eventually stopped paying, and applied to the court to set one or both of the conflicting orders aside.

The husband framed his argument in two different ways: 1) he claimed that the first default order should be set aside as provided by the Family Law Rules; and 2) he contended that the second order was granted by mistake, and should not be allowed to stand.

The husband’s first argument did not persuade the court. It found that in order to successfully set aside a default order the husband had to satisfy a three-part test: 1) he had to explain his failure to defend; 2) he had to move with dispatch to set aside one or both judgments once he realized there were conflicting orders; and 3) he needed to demonstrate that he had at least an arguable defence on the merits. Here, the husband knew about both orders in 2005, but neglected to bring a motion until four years later. That delay alone disqualified him from succeeding on this basis.

The husband was equally unsuccessful with the second line of argument. He had claimed that since the first judge already ruled that the husband’s imputed income for support purposes was $90,000, that judge had taken control (or had become “seized”) of the litigation and had exclusive jurisdiction to decide any other matters arising from it – including the power to reconsider, vary or revoke the original judgment. In other words, since support issues and income levels had already been determined on a final basis by the first judge, it was not jurisdictionally open to the second judge to make an order that the husband’s income was $133,000, the husband claimed. That purported second order was therefore rendered by mistake. To hold otherwise would allow two duplicate judgments, each relating to the same issues and the same parties, to stand.

However, once again the court was not convinced. It reviewed the Family Law Rules and found that while courts were indeed generally entitled to make changes to an order, the discretion was restricted to narrow circumstances, i.e. where the order had been obtained by fraud, contained a mistake, or where there was a lack of notice of the hearing that resulted in the order. With that in mind, the husband in this case had to establish that the second judge made a “mistake” in granting the order.

The court found there had been no legal “mistake” here. First of all, the Rules on which the husband relied did not allow for changes to orders based merely on fresh evidence or circumstances that were revealed after-the-fact. They also did not extend to correcting legal or jurisdictional errors. Both orders were otherwise regular in form and content. And although there was an ancient and inherent jurisdiction in the courts to set aside an order in the interests of justice, it was accompanied by a fairly stringent test, including a requirement that the husband have acted diligently in asking the court to change the order, and proof that the order is necessary to prevent a miscarriage of justice.

The court found once again that those tests were not met here; and it emphasized that the husband had delayed in seeking to have the order set aside. However, he was still entitled to come back to court to bring a motion to try to vary the order, or else have it adjusted to retroactively bring about justice between the parties.

For the full text of the decision, see: Gray v. Rizzi http://bit.ly/i3TkQl

Additional information on family law issues can be found on our web site  www.russellalexander.com