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.