ENFORCEMENT OF SUPPORT

What is "FRO"?
The Family Responsibility Office ("FRO") is part of the Ontario Ministry of Community and Social Services (Ontario) .  FRO enforces support if:

• a court orders someone to pay child or spousal support, or

• someone files a domestic agreement with the court for enforcement of child or spousal support

 

The only way to stop FRO from collecting support is if all parties sign a Notice of Withdrawal from FRO.  Courts cannot order this to be done.

 

FRO collects payments from the Payor and sends the money to the Recipient. When a payor misses payments, the payor is “in arrears” and FRO takes steps to collect the debt.

 

FRO is, in effect, a collection agency.  They cannot alter the amount that the payor was ordered to pay or reduce the arrears.  They do have the discretion about how and when the payor pays, particularly the payment of arrears. 

 

If the amount that a payor is ordered to pay is no longer appropriate, the payor must bring a court proceeding to change support (a "Motion to Change a Final Order or Agreement" - see article).  This court involves the payor and the recipient of support, but not FRO.

 

Do not expect FRO to do things they cannot do.  They must enforce the Order or Agreement, even if there are good reasons to change it.  They may give you time to fix the order or agreement, before they take aggressive enforcement procedures.

 

Why Not Pay the Recipient Directly?
Be very careful about paying the recipient directly, even if the recipient requests direct payments.  If you do not pay through FRO, you must prove all payments were received. This proof can be required years or decades later. 

 

Cancelled cheques or signed receipts may be enough.  Other methods of payments may not result in the evidence you need.  If you cannot prove payment, you may have to pay it all over again!

 

If the recipient is on Ontario Works or Ontario Disability Support Plan, never pay directly unless you receive confirmation from the agency that they agree (in writing).  The support money likely belongs to the agency, not the recipient.

 

Even if the recipient signs a Notice of Withdraw from FRO (and you confirm that FRO has received it), you should still keep proof of payment.  Either party can re-file with FRO for enforcement (without notice to the other party), at any time.

 

What Enforcement Measures Can FRO Take?
Whenever FRO is sent a support order, they will send a Support Deduction Order to the payor's employer or other income source (if any).  This is done whether the payor is in arrears or not.  (FRO might consider not sending the Support Deduction Order to you employer, if they are confident you will pay directly to FRO and you are dealing with an employer who may (illegally) dismiss you rather than deal with the paperwork of deducting income.)

 

FRO has a variety of other enforcement steps open to them to pursue payments from the payor, including:

• Garnishing up to 100% of the money in the payor’s bank account, or 50% of a joint accounts.

• Upon 15 days’ notice, report the debt to a credit bureau (stays on their file for 6 years).

• Garnishing any money from the federal government, including 100% of tax refunds and interest on savings bonds, and 50% of income type funds including Employment Insurance, CPP benefits, Old Age Security, etc.

• Upon 30 days notice, suspend the payor’s driver’s license.

• Suspending other provincial licenses, such as fishing, hunting, or professional licenses.

• Suspending federal licenses, such as passports, pilot’s / maritime / navigational licenses.

• Seizing any lottery prize winning of $1,000 or more (these prizes must be collected at an OLG office).

• Registering a lien against the payor’s property, under the Personal Property Security Act (which can affect whether the payor can sell property or keep the money from sale, if the arrears have not yet been paid).

• Reporting the payor to a professional or occupational entity.

• Asking the court to issue a writ of seizure and sale to be registered with the sheriff. The writ may require the Sheriff to seize and sell the payor’s property, or may be registered against property, so that if the payor tries to sell or refinance it, the profit must be used to pay the arrears.

• Default Proceedings (see below): FRO brings the client to court giving the payor three options:

  • pay the ongoing support and all arrears or at least enter into an acceptable payment plan;

  • prove a legal excuse for not paying; or

  • go to jail for up to 180 days.

 

The purpose of some of these measures is to push the payor into action - to get the payor to:

• pay all the arrears;

• work out a payment plan with FRO; or

• bring a court proceeding to change the support order (ongoing support and/or arrears)

 

FRO is limited on what they can agree to:

• they cannot stop collecting (see discussion below about termination);

• they cannot delay taking enforcement steps for long;

• they cannot agree to accept less than the ongoing support amount; and

• usually, they expect the arrears to be paid in at least 36 months.

 

Generally, the more you delay and the more you hide, the more aggressive FRO will be with their collections.  In dealing with FRO understand what they can and cannot do.  Be polite.  Try to convince them you are trying to resolve the matter. 

 

What is a FRO Default Proceeding?
FRO may bring a payor who is in arrears to court.  There are four possible outcomes:

• the payor proves to a court that there are no arrears

• the payor proves he/she has a lawful excuse for not paying (there are very few such excuses)

• the payor is sentenced to up to 180 days in jail

• the payor is ordered to make specified payments by a certain date or go to jail for 180 days

 

Beware:  Payors regularly are sent to jail for refusal to pay support or refusal to deal with the problem.

 

FRO need only provide:

• a copy of the order or support agreement

• a copy of their statement of account (showing the support accrued and the payments they received)

 

Amount of Support Ordered Too High
Often the problem is that the support order is too high given the payor's income.

 

It is the payor's obligation to bring a court proceeding seeking to lower the support when they are unable to pay support.  A judge may be unsympathetic to a plea that they could not afford to pay, if the payor took no action to deal with the problem.  The amount of support being too high is NOT a lawful excuse for not paying.  However, a court will usually give the payor some time to bring the proceeding to change support and then wait until there is an outcome, before making a decision about on the Default Proceeding.

 

Proceedings to change support ("Motion to Change a Final Order or Agreement") can be difficult.  The payor must prove their income for the period they are seeking a change in support.  Courts cannot change support for the period before the last support order.  If income was imputed (i.e. the judge did not accept the payor's evidence of income and ordered support based on a higher income), it can be very difficult to convince a court that the income has gone decreased.

 

Before a judge delays the Default Hearing for the payor to bring a Motion to Change, the judge may require proof that there is merit (a good case) to change the arrears in a significant way.

 

Support Should Terminate

It may be that support should terminate.  For example, for child support:

• a child turns eighteen (18) years old and is no longer in full-time school (and is not disabled)

• a child leaves the recipient's care

 

For example, in the case of spousal support, a recipient can now support her/his self and no longer needs spousal support

 

In the absence of the Recipient agreeing (in writing to FRO) that the support should be terminated, a court order terminating support is required. This cannot be done in the default proceeding.  It requires a Motion to Change (see article).

 

Arrears are Not Discharged by Going to Jail

If one goes to jail for not paying, the obligation to pay arrears remains.  FRO can later bring another Default Proceeding, seeking further time in jail.

 

Process
FRO will serve the payor with a Notice of Default Hearing and supporting documents.  The court will be at the location where the Recipient resides, which may be very difficult for a payor who lives far away. It is difficult to move the case. The payor has a legal duty to keep FRO advised of his/her address. If FRO cannot find you for service, they may obtain a court order allowing the payor to be served indirectly.

 

Within 10 days of being served with the Notice, the payor should serve on FRO and file with the court:

• Form 30B “Default Dispute”

• Financial Statement ( either the FRO Form 4 or Family Court Form 13.

 

You may be able to get permission to file late.

 

You must attend the Default Hearing court days.  If you fail to attend, a judge will likely order you to be arrested by the police, to compel you to attend.  If you fail to file the required responding documents, a judge can conclude you have not paid and do not have a "lawful excuse" ... and order you to go to jail.

 

When Consult a Lawyer?

• if you are unable to pay the support and you do not think you will be able to or cannot quickly bring your payments up to date - delay can make things worse

• before you pay in ways other than through FRO

• if you believe the child ceases to be entitled to support or is no longer in the recipient's care

• IMMEDIATELY, if you receive a Notice of Intention to Suspend Drivers' License - you have very limited time to prevent the suspension

• IMMEDIATELY, if you are served with Notice of Default Hearing - you are at risk and you need to take steps as soon as possible

 

Do You Need A Lawyer?

As suggested above, you need reliable legal advice.  Get this from a lawyer working for you, not FRO clerks or others who may mean well but may not have a full understanding of the law.

 

You may need a lawyer to change an existing lawyer or, if it is very simple, you might be able to do it on your own. 

 

See the discussion about this on the Motion to Change page.

 

The consequences of not dealing with support enforcement issues can be very serious.  Make sure you know what to do and do not delay taking necessary action!