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Ontario’s Family Responsibility Office (FRO), the entity responsible for collecting, distributing, and enforcing court-ordered child and spousal support payments, was ordered to pay a father $7,500 after a court found that it had pursued “aggressive enforcement action” against him.
What Happened?
The parties in question had three children together, and were divorced in July 2008. The terms of their divorce provided that the mother have custody of the two younger children and that the father have custody of the eldest child. The father was also ordered to make monthly child support payments of $1,803 to the mother. Eventually all three children moved in with the father.
Negotiations between the parents regarding a change to the support arrangements began in August 2015. On August 21 of that year, an FRO caseworker advised the father that he was being reported to the Credit Bureau, the first measure in enforcement of unpaid child support. Several days later the parties filed the paperwork necessary to request a court date to formally change their child support arrangements. On August 27, the father’s lawyer wrote to the FRO caseworker to inform them that the parties had consented to terminate child support, and that arrears from July 6, 2015 onwards were cancelled.
FRO Enforcement Actions Against the Father
In early September, the father’s lawyer received notice that a Judge had refused to honour the order relieving the father from his child support obligations. The Judge requested further details about the situation and wanted to know if the mother had obtained independent legal advice. In late September, the father was informed that the FRO had commenced an enforcement process against him for unpaid child support. In response, the father’s lawyer informed the FRO that the parties had consented to a termination of child support and that a motion to change was pending (further court proceedings to finalize the child support terms had been delayed).
The caseworker expressed “sympathy” regarding the pending changes to the child support arrangement between the parties, but advised that the FRO could not “look behind” a court order and was compelled to enforce unpaid child support. The father was eventually informed that the FRO was taking further enforcement steps against him, including taking measures to suspend his driver’s license. The father filed a motion requesting a refraining order (i.e. an order that the Director of the FRO to refrain from suspending his driver’s license). The father’s lawyer also called the FRO caseworker to attempt to discuss settlement. The lawyer was informed that external phone calls could not be transferred to Legal Services and was given a fax number instead. The lawyer then wrote directly to Legal Services, copying the caseworker and requesting that the FRO hold-off on any further enforcement measures until after the court proceedings relating to the changes to the child support arrangement were finalized. All requests went unanswered.
The father’s requested refraining order was granted on December 10, 2015.
Father Seeks Costs from FRO
The father sought costs based on the fact that he had to seek the refraining order. He argued that he is entitled to the costs since the FRO Director had not exercised his discretion in an appropriate manner, and that the FRO caseworker and legal department had failed to respond to his counsel’s efforts to deal with the issue in a manner that could have avoided the need to file the refraining motion.
The Decision
The father ultimately succeeded in obtaining costs from the FRO.
The court had to balance the FRO’s mandate to enforce all support orders filed with it, and the legal rights and interests of the father. While the FRO is obligated to enforce unpaid child support, the court noted that the Director of the FRO has discretion in choosing the manner in which this enforcement takes place. The question was whether the Director had exercised this discretion in a reasonable manner in the circumstances at hand.
In making its final decision, the court reviewed a number of circumstances in which costs had been ordered against the FRO Director’s office. The court noted that:
Generally, where there is a real and substantial dispute between the parties regarding the amount to be enforced and the parties have taken action before the courts to settle the dispute, aggressive enforcement actions on the part of FRO could constitute an unreasonable exercise of the Director’s discretion.
The court went on to note that the above was exactly what had happened in this case, stating:
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.
In this case, the FRO caseworker was kept up to date about the status of the motion to change the terms of child support. The Director’s insistence on proceeding with enforcement in such circumstances was not only costly to the father but also ultimately costly to the court in terms of having to address the father’s request for a refraining order.
The court went on to note:
The fact that the [father] knew that some arrears may have been owing, does not, in my view, excuse the aggressive enforcement action taken. There was clearly a dispute over the amount of arrears. This dispute was to be reviewed and likely resolved by the court within a very short period of time. That process should have been allowed to proceed before any further enforcement action was taken. What FRO was doing, in effect, was continuing to enforce monthly payments and calculating arrears pursuant to the original order.
The FRO was ultimately ordered to pay the father $7,500 in costs.
If you have questions about child support or other responsibilities following separation or divorce, contact Windsor family lawyer Jason P. Howie. Jason is certified by the Law Society of Upper Canada as a Specialist in Family Law and provides personalized attention and support to clients with divorce and family law concerns. Call 519.973.1500 or contact us online.
