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Posts tagged ‘FRO’

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

Defaulting Family Lawyer Sent to Jail for Failure to Pay Support Arrears

jail

Defaulting Family Lawyer Sent to Jail for Failure to Pay Support Arrears

Even having practiced as long as I have, it’s rare to see a support-paying parent sent to jail for non-payment, even though this is one of the enforcement mechanisms available to Ontario courts under the governing family legislation.

But this is exactly what happened in a recent case called Ontario (Family Responsibility Office) v. Adema. And the defaulting parent was a lawyer, to boot.

The 50-year old man was the father of three children by two different mothers. In connection with one of those children, he was $15,000 in arrears, and in connection with the other two, he was $19,500 in arrears. He had also been ordered by the court to provide financial disclosure, and had been warned by the support-enforcement arm of the Family Responsibility Office (FRO) that Default Hearings would proceed if he did not comply with various directives. Despite being granted several extensions by the court, the father never made what was considered adequate financial disclosure and delivered it late in any event. To add insult to injury, he happened to work as a lawyer and practiced family law periodically over the courts of his rather peripatetic career.

The Default Hearing went forward as had been threatened, with the Director of the FRO requesting the court to imprison the man for 90 days in connection with each of the defaults, or until he paid the outstanding arrears. The court agreed that some jail time was necessary, and admonished the father in the following terms:

The payor has had 9 months to show good faith by paying some support.

The payor has preferred his interests ahead of those of his children. His financial statement reveals that he spends $300 per month on alcohol and tobacco, $100 per month on entertainment and $300 per month towards his debts. Yet he is choosing not to voluntarily pay any child support.

The payor did not provide a valid justification for his poor payment history. He presented no plan to pay the arrears. He gave no indication that he would voluntarily make any payments in these cases. He presented as aggrieved that his support obligations are being enforced. He feels that his children have been provided for adequately by their mothers. Why is he being bothered now?

Rationalizing that as a lawyer the father should have “known better” — the court added:

It has become clear that less aggressive enforcement options other than imprisonment have failed. The suspension of the payor’s driver’s licence and passport did not result in support compliance. These default proceedings have had little impact on his payments. The payor was given multiple opportunities to comply with the support and disclosure orders.

The payor knows or should know the potential consequences of his behaviour. It is disappointing that a family law lawyer has acted in such a manner.

The court has limited sympathy for the payor’s predicament. It is reserved for his children who have gone without adequate support and the mothers of those children who have assumed the payor’s support obligations.

The message needs to be sent to the payor that child support orders for his children matter and will be enforced. The default orders shall provide for an immediate committal of the payor for 75 days in both cases or until a portion of the arrears ($3,500 in each case) is paid.

Should court-imposed imprisonment be used more often to enforce the payment of child support? What are your thoughts?

For the full text of the decision, see:

Ontario (Family Responsibility Office) v. Adema, 2016 ONCJ 37 (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

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.

If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. This includes his or her full name, address, social insurance number, place of employment or business, income, and any property he or she owns. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.

 

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.

Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.

Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.

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.

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.

Enforcement of Child Support in Ontario

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

In this we discuss 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.

If a payment is missed, the FRO takes action to enforce the order or agreement.

Enforcement of Child Support


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

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.

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.

If a payment is missed, the FRO takes action to enforce the order or agreement.