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The Family Responsibility and Support Arrears Enforcement Act is legislation that provides for the enforcement of support orders in Ontario. It authorizes the Family Responsibility Office (FRO), a government program, to enforce support orders issued by Ontario courts by collecting support payments from the payor and distributing them to the recipient. The FRO has a duty to enforce support deduction orders that are filed, so if a payor wants to stay enforcement of the order, the underlying support order must be stayed or suspended. An interim variation of a final support order will only be granted if certain requirements are met and there is compelling evidence.
Payor Seeks to Temporarily Pause Payments for Health Treatment
In Alalouf v. Sumar, the parties had completed a nine-day trial addressing several issues, resulting in an order requiring the respondent to pay support. The respondent now sought to stay or suspend his support payments and the FRO’s enforcement of his support obligations for two months, before reinstating the payments.
In the respondent’s affidavit, he explained that he wished to have a break from making payments so that he could complete health screenings and concentrate on his health issues before resuming payments when he anticipated that he would return to work. The respondent did not file an affidavit from a doctor, although he did include a doctor’s note that was prepared for his request for leave from his employment. The letter stated that the respondent needed time off from work to focus on his recovery and requested a two-month leave of absence.
The applicant argued that the support payments should not be stayed for two months. She pointed out that the respondent’s support payments were already in arrears, and that he had failed to pay the equalization amount ordered at trial and the costs awarded. She also claimed he had failed to provide the required financial disclosure under the final support order. And the respondent had failed to provide disclosure in the past, as the trial judge had also found the respondent had failed to comply with court orders and to make full, frank, and timely disclosure. Finally, the applicant was in the position of having to find new employment and claimed that suspending support would create hardship.
The Underlying Support Order Must be Stayed
Justice Kristjanson considered the doctor’s notes, which were foundational to the respondent’s wish to stop his support payments. But the note was largely based on the patient’s self-report and did not include a medical opinion or a compelling reason for a two-month leave of absence. The judge found that these types of notes do not provide much assistance to the courts. It was also worth considering that doctors do not have to balance the rights of different parties.
For example, in Forward Signs Inc v. Philcan Group Inc., the judge noted that courts are “balancing the rights of two parties and need to ensure a fair process to all. The doctor, by contrast, is a fiduciary with a singular focus on the health of the patient”. And in this case, the court needed to consider the support recipient’s right to obtain court-ordered support. And it was conceivable that the doctor would not know that the patient would use the letter to try to suspend his child and spousal support payments. As Justice Kristjanson explained, “the doctor focuses only on his patient’s interests – the support payor. But the Court must do justice between the parties, based on the evidence”.
Turning to the statutory scheme, the Family Responsibility and Support Arrears Enforcement Act indicates that the FRO may consent to a stay of an amount deducted for arrears. But a full stay of enforcement by the FRO required the underlying support order to be stayed or suspended in accordance with section 17(1) of the Divorce Act. But section 17(4) provides that before a court varies a child support order under section 17(1), the court must be satisfied “that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order”. Section 17(4.1) imposes the same requirement regarding spousal support.
Test for Interim Variation of a Final Order
The test for an interim variation of a final order was set out in S.H. v. D.K. In that case, the court described the test as “stringent” and stated that supporting evidence needed to be “compelling”. And imposing a high threshold was justified “since the purpose of an interim or temporary order is simply to provide a reasonably acceptable solution to a difficult problem until trial, when a full investigation will be made”.
Berta v. Berta identified four requirements that the requesting party had to meet for an interim variation of a final support order and a stay of that order:
- A strong prima facie case;
- A clear case of hardship;
- Urgency; and
- That the moving party has come to court with “clean hands”.
Judge Notes Payor Had Failed to Meet His Existing Obligations
In this case, they found that the respondent had failed to establish that the support payments should be stayed or suspended for two months. Overall, the respondent had not met the requirements and established (a) a strong prima facie case; (b) a clear case of hardship; (c) urgency; or (d) that the respondent had come to court with “clean hands”. It appeared that the respondent wished to have two months without paying child and spousal support without compelling medical evidence.
Essentially, his request was to have support payments stayed so that he could attend “an unnamed number of appointments and tests, with no expert evidence of the specific diagnosis or prognosis, so he can “concentrate” on his health issues”. This was not urgent, nor did the judge find that the change was significant, long-lasting, or material enough to require immediate implementation.
The respondent also failed to establish any hardship. He did not provide the full financial disclosure required by the Family Law Rules, so the court was unable to assess his financial resources or determine whether there was any hardship.
Moving to the fourth element, the respondent did not come before the court with “clean hands”. He had failed to pay the equalization amount he owed and had outstanding costs awards from prior proceedings. Moreover, he did not make a full financial disclosure on the current motion. And his arrears of child and spousal support exceeded $70,000. All of these considerations led the judge to exercise discretion and refuse to stay or suspend the support order, as well as to refuse to stay FRO enforcement. The respondent’s motion was dismissed.
Johnson Miller Family Lawyers: Advising Clients on Support Orders in Windsor-Essex
If you are dealing with FRO enforcement, support arrears, or a motion to vary child or spousal support, experienced legal guidance can make a significant difference. Whether you are a support payor seeking relief or a recipient trying to enforce a support order, the family lawyers at Johnson Miller Family Lawyers can help you understand your rights and the options available under Ontario family law.
Contact our office by calling 519-973-1500 or reach out online to discuss your situation and obtain strategic advice on addressing FRO enforcement, support variation motions, and family court proceedings in Ontario.
