What is FRO?
Family Responsibility Office (FRO) is Ontario's maintenance enforcement program (MEP) that administers and enforces child support payments and spousal support payments in the province.
The authority of the Family Responsibility Office
FRO is required to collect all child support payments and child support arrears in separation agreements or divorce or family court orders that are filed with FRO.
FRO can collect money directly from the payor, from his or her income source or sources, or by way of writs or liens filed against property or seizure of bank accounts.
Filing support orders with the FRO
All support orders made in Ontario are automatically filed by the court that makes the order with FRO. It takes some time for the order to become registered with the FRO office, and when that occurs a case number is assigned and the parties are contacted. The support payor is obligated to make payments to the FRO office at that time.
Making support payments to the FRO
Payments can be made by way of internet banking, telephone banking or payments made directly to the FRO office. Payments by way of cheque or money order are discouraged as they can lead to delays and tracking problems. Obviously, electronic bank payments are the most efficient to track.
It is critical that the case number be written on all payments made to FRO.
Support arrears collection: FRO's enforcement powers
FRO has the following enforcement powers in regards to collecting late support payments:
If the case falls into arrears, the enforcement office will send correspondence to the payor indicating all of the remedies that are available to collect the payments and invite the payor to begin making payments voluntarily.
The enforcement staff will also immediately initiate a number of "passive enforcement" steps. These include forwarding the support deduction order to an employer, the federal government for EI, HST, CPP and income tax refund seizures and notification of arrears to the credit bureau.
If these passive enforcement steps do not produce payment, the enforcement staff are authorized to initiate aggressive enforcement action including driver's licence and passport suspension and default hearings.
FRO & support payment issues: your options
It is important to understand that the Family Responsibility Office exists to enforce the Court's Order or Agreement that is filed with FRO. If you disagree with the amount of support or other provisions that are related to the support order or agreement, your complaint is not with FRO. Repeated attempts to contact FRO with respect to those kinds of issues will not produce any resolution. The remedy is to return to the court with a Motion to Change (you will likely need a lawyer for this), or to the bargaining table with the support recipient to achieve a new support arrangement. Once the order is varied, it can be filed with FRO and then FRO will be bound by the new Agreement or Order and enforce it by its terms.
Family Responsibility Office (FRO) is Ontario's maintenance enforcement program (MEP) that administers and enforces child support payments and spousal support payments in the province.
The authority of the Family Responsibility Office
FRO is required to collect all child support payments and child support arrears in separation agreements or divorce or family court orders that are filed with FRO.
FRO can collect money directly from the payor, from his or her income source or sources, or by way of writs or liens filed against property or seizure of bank accounts.
Filing support orders with the FRO
All support orders made in Ontario are automatically filed by the court that makes the order with FRO. It takes some time for the order to become registered with the FRO office, and when that occurs a case number is assigned and the parties are contacted. The support payor is obligated to make payments to the FRO office at that time.
Making support payments to the FRO
Payments can be made by way of internet banking, telephone banking or payments made directly to the FRO office. Payments by way of cheque or money order are discouraged as they can lead to delays and tracking problems. Obviously, electronic bank payments are the most efficient to track.
It is critical that the case number be written on all payments made to FRO.
Support arrears collection: FRO's enforcement powers
FRO has the following enforcement powers in regards to collecting late support payments:
- Payroll deduction or garnishment of wages;
- Seizure of bank accounts, including joint accounts;
- Report a payor in arrears to a credit bureau to make it more difficult for them to obtain loans or other credit while they owe family support. The report will stay on the support payor's credit rating for seven years;
- Suspension of passports and federal licenses;
- Seizure of income tax Refunds and GST rebates:
- Garnishment of 50% of Employment Insurance, CPP, OAS and other federal periodic payments;
- Suspension of a defaulting payor's driver's licence;
- Default hearings with jail terms possible for up to 180 days.
If the case falls into arrears, the enforcement office will send correspondence to the payor indicating all of the remedies that are available to collect the payments and invite the payor to begin making payments voluntarily.
The enforcement staff will also immediately initiate a number of "passive enforcement" steps. These include forwarding the support deduction order to an employer, the federal government for EI, HST, CPP and income tax refund seizures and notification of arrears to the credit bureau.
If these passive enforcement steps do not produce payment, the enforcement staff are authorized to initiate aggressive enforcement action including driver's licence and passport suspension and default hearings.
FRO & support payment issues: your options
It is important to understand that the Family Responsibility Office exists to enforce the Court's Order or Agreement that is filed with FRO. If you disagree with the amount of support or other provisions that are related to the support order or agreement, your complaint is not with FRO. Repeated attempts to contact FRO with respect to those kinds of issues will not produce any resolution. The remedy is to return to the court with a Motion to Change (you will likely need a lawyer for this), or to the bargaining table with the support recipient to achieve a new support arrangement. Once the order is varied, it can be filed with FRO and then FRO will be bound by the new Agreement or Order and enforce it by its terms.
50% Support Deductions
The FRO has the right to deduct a MAXIMUM of 50% of your net pay. Many support payors mistakenly believe there are no options available to them. They cannot budget or maintain basic living expenses and get frustrated and quit a good job or get into extreme credit difficulty as a result.
There are several options available:
Court Motion - This is easier than you think! Most judges recognize that the average household cannot sustain itself on 50% of net pay. The law that governs FRO authorizes the Court to reduce the amount that is being deducted for arrears thereby reducing the 50% to a lower level. However, the Court cannot reduce the amount of the deduction to an amount less than the current ongoing monthly support amount. [To change the ongoing support, you must bring a motion to change (vary) and serve your ex]. A simple example is as follows:
Net monthly pay (after statutory deductions) = $3,000.00
50% to FRO = $1,500.00
Current Monthly Support Payment - $680.00
Amount applied to Arrears = $820.00
The Court can reduce the $820.00 amount to a more manageable level. You can bring a motion in the Court where you reside (Ontario Court of Justice if your Order was made in that Court or if your support obligation arises from a Separation Agreement that is payable through FRO; Superior Court if your support Order was made in Superior Court). You do not have to serve your ex-just FR0. You bring the motion on short notice (4 days). You ask the Court to suspend the arrears portion of the Support Deduction Notice or in the alternative limit the deduction on account of arrears to a specified amount that you can handle. You must file a sworn Financial Statement with a pay stub showing your YTD earnings and deductions and the past 3 years Tax Assessments. The Financial Statement should carefully set out your monthly expenses and increased indebtedness arising out of the 50% deduction. You should file a short Affidavit indicating that you are having difficulty maintaining the basic expenses of your household with the 50% deduction and are seeking a reduction to allow for a more manageable repayment. You should attach copies of your current bills, bank statements etc. If you are in a second family situation ensure that you detail the costs related to your 2nd family unit and the details of your current partner's income, if any. You should briefly indicate the reasons why you fell behind in your payments (lay off, downsizing etc.). If you have unsuccessfully attempted to borrow the funds to discharge the arrears attach a copy of your rejection letter or give details of such efforts. Use this option to get quick relief. Even if you fell behind due to your own irresponsibility you may be able to invoke the Court's discretion to give you some relief based on your candid and forthright attempt to set the matter right and repay these arrears in an orderly way.
Borrow the money to pay off the arrears portion. The monthly payment with interest will likely be a lot less than the amount being deducted for arrears.
Make a payment plan with FRO (VAPS). The FRO staff are authorized to negotiate payments plans just like you would in a court motion so the arrears portion of the 50% can be reduced. They will want the same material as you would provide to the court. The problem here is not knowing who you are dealing with and losing control of the timeline. You could fax all the material into FRO with one of their repayment forms and never know when you will hear from them. In a Court Motion you may wait around all day but at least you have a day of reckoning and FRO must answer to the Court. This payment plan option is also available when a First Notice of Intention to Suspend a Driver's License is received. The repayment plan proposal and supporting documentation should have the FRO Case Number written on every page and can be faxed to 416-240-2407 and during COVID until further notice emailed to frolegalservice@ontario.ca. Keep copies of everything including your fax transmission sheet and follow up daily by fax. If you do not get a timely or satisfactory response bring the Motion (Option #1) and ask for costs against FRO based on its failure to respond to your repayment proposal.
Motion to Change. If you can't afford the current monthly support payment (or if that payment alone is close to 50%) you will need to bring a motion to change the monthly payment (and arrears). You will likely need a lawyer for this.
The FRO has the right to deduct a MAXIMUM of 50% of your net pay. Many support payors mistakenly believe there are no options available to them. They cannot budget or maintain basic living expenses and get frustrated and quit a good job or get into extreme credit difficulty as a result.
There are several options available:
Court Motion - This is easier than you think! Most judges recognize that the average household cannot sustain itself on 50% of net pay. The law that governs FRO authorizes the Court to reduce the amount that is being deducted for arrears thereby reducing the 50% to a lower level. However, the Court cannot reduce the amount of the deduction to an amount less than the current ongoing monthly support amount. [To change the ongoing support, you must bring a motion to change (vary) and serve your ex]. A simple example is as follows:
Net monthly pay (after statutory deductions) = $3,000.00
50% to FRO = $1,500.00
Current Monthly Support Payment - $680.00
Amount applied to Arrears = $820.00
The Court can reduce the $820.00 amount to a more manageable level. You can bring a motion in the Court where you reside (Ontario Court of Justice if your Order was made in that Court or if your support obligation arises from a Separation Agreement that is payable through FRO; Superior Court if your support Order was made in Superior Court). You do not have to serve your ex-just FR0. You bring the motion on short notice (4 days). You ask the Court to suspend the arrears portion of the Support Deduction Notice or in the alternative limit the deduction on account of arrears to a specified amount that you can handle. You must file a sworn Financial Statement with a pay stub showing your YTD earnings and deductions and the past 3 years Tax Assessments. The Financial Statement should carefully set out your monthly expenses and increased indebtedness arising out of the 50% deduction. You should file a short Affidavit indicating that you are having difficulty maintaining the basic expenses of your household with the 50% deduction and are seeking a reduction to allow for a more manageable repayment. You should attach copies of your current bills, bank statements etc. If you are in a second family situation ensure that you detail the costs related to your 2nd family unit and the details of your current partner's income, if any. You should briefly indicate the reasons why you fell behind in your payments (lay off, downsizing etc.). If you have unsuccessfully attempted to borrow the funds to discharge the arrears attach a copy of your rejection letter or give details of such efforts. Use this option to get quick relief. Even if you fell behind due to your own irresponsibility you may be able to invoke the Court's discretion to give you some relief based on your candid and forthright attempt to set the matter right and repay these arrears in an orderly way.
Borrow the money to pay off the arrears portion. The monthly payment with interest will likely be a lot less than the amount being deducted for arrears.
Make a payment plan with FRO (VAPS). The FRO staff are authorized to negotiate payments plans just like you would in a court motion so the arrears portion of the 50% can be reduced. They will want the same material as you would provide to the court. The problem here is not knowing who you are dealing with and losing control of the timeline. You could fax all the material into FRO with one of their repayment forms and never know when you will hear from them. In a Court Motion you may wait around all day but at least you have a day of reckoning and FRO must answer to the Court. This payment plan option is also available when a First Notice of Intention to Suspend a Driver's License is received. The repayment plan proposal and supporting documentation should have the FRO Case Number written on every page and can be faxed to 416-240-2407 and during COVID until further notice emailed to frolegalservice@ontario.ca. Keep copies of everything including your fax transmission sheet and follow up daily by fax. If you do not get a timely or satisfactory response bring the Motion (Option #1) and ask for costs against FRO based on its failure to respond to your repayment proposal.
Motion to Change. If you can't afford the current monthly support payment (or if that payment alone is close to 50%) you will need to bring a motion to change the monthly payment (and arrears). You will likely need a lawyer for this.
Driver's Licence Suspension
One of the methods that FRO often uses to enforce child support arrears is driver's licence suspension. The FRO's statutory power to suspend the driver's licence of a child support payor is substantial and complex to understand. Ignoring letters from the FRO is often a devastating mistake. The FRO has many powers available to enforce support orders and in order to exercise those powers, the FRO must follow the legal rules that govern the way in which they can use them. Most of those powers (but not all) require that notice be given by ordinary mail. If you do not open the mail and act accordingly you can lose your rights to protect yourself from the actions of the FRO. Many cases have arisen where support payors have strong cases that were compromised badly because of the failure to open the letter in a timely way and obtain good legal advice immediately.
Options available to payors threatened by driver's license suspension
FRO's power to enforce child support through driver's licence suspension is governed by the FRO legislation (FRSAEA) and, accordingly, the FRO may direct the Registrar of Motor Vehicles to suspend the driver's licence of a payor who is in default of a support order filed with the FRO.
Payors are given notice of the intention to suspend and are given an opportunity to:
Alternatively, the notice gives the payor an opportunity to bring a Refraining Order motion, preventing the Director from suspending his or her licence for a period of 6 months. The refraining order must be obtained before the expiry of the suspension date in the licence suspension notice. The court does not have jurisdiction or authority to make a refraining order after that date. Obtaining quick legal advice when a notice of intention is received is critical.
Gathering together Notices of Assessment for all years since the arrears accrued together with current pay stubs and completing a sworn Financial Statement are necessary first steps in order to negotiate a repayment plan with the FRO or bring the refraining order. A Financial Statement must be filed with the Motion to Refrain. Under the Family Law Rules the Financial Statement must attach the Notices of Assessment from the three previous taxation years and proof of current income. Failure to have the Notices of Assessment available may result in the loss of the drivers license.
There is no point bringing a refraining order motion if there is no intention to bring a Motion to Change the child support order. If there has not been a change in financial circumstances since the making of the original support order, then a motion to change will not be successful and a refraining order will not be granted. If that is the situation, the approach should be to either borrow the money to pay the support arrears and prevent the driver's licence suspension, or negotiate a repayment plan based on full income disclosure. Typically a support deduction notice will be put in place to secure the terms of the repayment plan.
If income tax returns are not up to date, the payor will be in significant difficulty obtaining a repayment arrangement or a refraining order. Immediate registration with CRA My Account is essential. Copies of all T4 Slips should be made from the account and the outstanding tax returns should be prepared immediately.
If the payor fails to comply with the terms of the payment arrangement, the FRO Director may issue a final notice of driver's licence suspension, in which case the payor does not have any right or ability to obtain a refraining order from the court.
Similarly, if the payor fails to comply with the terms of the refraining order, his or her driver's licence may be suspended without any right to a further refraining order. It is important to realize that the purpose of issuing the refraining order is to give the payor an opportunity to obtain a new support order on a Motion to Change because of a change in financial circumstances. Under the legislation, a refraining order is granted for a period of 6 months. If the Support Order is not varied in that six month period the licence could thereafter be suspended - unless the payor first obtains a one-time only order extending the time of the refraining order for a further period of 3 months so the motion to change can be finalized.
At the time the refraining order motion is considered by the court, there will be payment terms included therein which set out the amounts that the payor is to pay towards the support and the arrears as a condition of the issuance of the refraining order at that time.
If you are having issues paying child support arrears and are threatened with driver's licence suspension, you should seek legal advice immediately.
One of the methods that FRO often uses to enforce child support arrears is driver's licence suspension. The FRO's statutory power to suspend the driver's licence of a child support payor is substantial and complex to understand. Ignoring letters from the FRO is often a devastating mistake. The FRO has many powers available to enforce support orders and in order to exercise those powers, the FRO must follow the legal rules that govern the way in which they can use them. Most of those powers (but not all) require that notice be given by ordinary mail. If you do not open the mail and act accordingly you can lose your rights to protect yourself from the actions of the FRO. Many cases have arisen where support payors have strong cases that were compromised badly because of the failure to open the letter in a timely way and obtain good legal advice immediately.
Options available to payors threatened by driver's license suspension
FRO's power to enforce child support through driver's licence suspension is governed by the FRO legislation (FRSAEA) and, accordingly, the FRO may direct the Registrar of Motor Vehicles to suspend the driver's licence of a payor who is in default of a support order filed with the FRO.
Payors are given notice of the intention to suspend and are given an opportunity to:
- pay the arrears in full, or
- enter into a repayment arrangement with the FRO Director
Alternatively, the notice gives the payor an opportunity to bring a Refraining Order motion, preventing the Director from suspending his or her licence for a period of 6 months. The refraining order must be obtained before the expiry of the suspension date in the licence suspension notice. The court does not have jurisdiction or authority to make a refraining order after that date. Obtaining quick legal advice when a notice of intention is received is critical.
Gathering together Notices of Assessment for all years since the arrears accrued together with current pay stubs and completing a sworn Financial Statement are necessary first steps in order to negotiate a repayment plan with the FRO or bring the refraining order. A Financial Statement must be filed with the Motion to Refrain. Under the Family Law Rules the Financial Statement must attach the Notices of Assessment from the three previous taxation years and proof of current income. Failure to have the Notices of Assessment available may result in the loss of the drivers license.
There is no point bringing a refraining order motion if there is no intention to bring a Motion to Change the child support order. If there has not been a change in financial circumstances since the making of the original support order, then a motion to change will not be successful and a refraining order will not be granted. If that is the situation, the approach should be to either borrow the money to pay the support arrears and prevent the driver's licence suspension, or negotiate a repayment plan based on full income disclosure. Typically a support deduction notice will be put in place to secure the terms of the repayment plan.
If income tax returns are not up to date, the payor will be in significant difficulty obtaining a repayment arrangement or a refraining order. Immediate registration with CRA My Account is essential. Copies of all T4 Slips should be made from the account and the outstanding tax returns should be prepared immediately.
If the payor fails to comply with the terms of the payment arrangement, the FRO Director may issue a final notice of driver's licence suspension, in which case the payor does not have any right or ability to obtain a refraining order from the court.
Similarly, if the payor fails to comply with the terms of the refraining order, his or her driver's licence may be suspended without any right to a further refraining order. It is important to realize that the purpose of issuing the refraining order is to give the payor an opportunity to obtain a new support order on a Motion to Change because of a change in financial circumstances. Under the legislation, a refraining order is granted for a period of 6 months. If the Support Order is not varied in that six month period the licence could thereafter be suspended - unless the payor first obtains a one-time only order extending the time of the refraining order for a further period of 3 months so the motion to change can be finalized.
At the time the refraining order motion is considered by the court, there will be payment terms included therein which set out the amounts that the payor is to pay towards the support and the arrears as a condition of the issuance of the refraining order at that time.
If you are having issues paying child support arrears and are threatened with driver's licence suspension, you should seek legal advice immediately.
Passport Suspension & Credit Bureau Reporting
Provincial child support enforcement agencies (FRO) (MEP) throughout Canada are given the authority to request, in cases of persistent child support arrears, a suspension of the payor’s passport, as well as suspension of his or her other designated Federal licenses.
Apart from Canadian Passports, the licenses affected are those under the Aeronautics Act and Canada Shipping Act
All that the provincial enforcement agency is required to do to initiate a passport revocation or suspension of other Federal licenses of the payor is send a Notice of Intention to Request a Federal License Suspension to the payor by mail at his or her last known address. Thirty days later the provincial agency can request that the Federal Licenses be denied or suspended. No Court approval is required in this process. No Court has the authority to make an Order stopping the provincial enforcement authority from making the suspension request.
How you can prevent passport suspension
What can be done to prevent passport revocation? - In Ontario, the payor that is in child support arrears can prevent passport suspension and revocation of his or her other Federal licenses by entering into a repayment plan satisfactory to FRO.
This entails payment of the ongoing amount due under the existing Court Order or Separation Agreement plus an amount sufficient to fall within FRO repayment timetables. Tax returns pay stubs and sworn financial statements will be required. Alternatively, a varied court order changing the ongoing payment and/or arrears and establishing a court ordered repayment schedule must be obtained to prevent the Federal License Denial or Suspension or obtain a reinstatement of same.
Typically, in Ontario the FRO sends out a Federal Notice at the same time as the Driver's Licence Suspension Notice or shortly thereafter.
FRO Reports to Credit Bureau
FRO has the discretion to disclose information regarding the amount of the arrears owing under a support order to a consumer reporting agency. There is no requirement for FRO to give notice to the payor prior to making the report. There is no requirement that FRO obtain Court approval prior to making the report. There appears to be no basis for the Court to make an Order preventing FRO from making a report.
Like the Federal Licence situation, the only available options are to enter into a repayment plan satisfactory to FRO or obtain a new varied Court Order with a court ordered repayment plan.
Typically, the FRO begins making credit bureau reports early in the enforcement process. Credit Reports are historic in nature and are not deleted. Subsequent reports are filed based on varied court orders or payments made and in good standing but the original negative report can never be deleted.
Provincial child support enforcement agencies (FRO) (MEP) throughout Canada are given the authority to request, in cases of persistent child support arrears, a suspension of the payor’s passport, as well as suspension of his or her other designated Federal licenses.
Apart from Canadian Passports, the licenses affected are those under the Aeronautics Act and Canada Shipping Act
All that the provincial enforcement agency is required to do to initiate a passport revocation or suspension of other Federal licenses of the payor is send a Notice of Intention to Request a Federal License Suspension to the payor by mail at his or her last known address. Thirty days later the provincial agency can request that the Federal Licenses be denied or suspended. No Court approval is required in this process. No Court has the authority to make an Order stopping the provincial enforcement authority from making the suspension request.
How you can prevent passport suspension
What can be done to prevent passport revocation? - In Ontario, the payor that is in child support arrears can prevent passport suspension and revocation of his or her other Federal licenses by entering into a repayment plan satisfactory to FRO.
This entails payment of the ongoing amount due under the existing Court Order or Separation Agreement plus an amount sufficient to fall within FRO repayment timetables. Tax returns pay stubs and sworn financial statements will be required. Alternatively, a varied court order changing the ongoing payment and/or arrears and establishing a court ordered repayment schedule must be obtained to prevent the Federal License Denial or Suspension or obtain a reinstatement of same.
Typically, in Ontario the FRO sends out a Federal Notice at the same time as the Driver's Licence Suspension Notice or shortly thereafter.
FRO Reports to Credit Bureau
FRO has the discretion to disclose information regarding the amount of the arrears owing under a support order to a consumer reporting agency. There is no requirement for FRO to give notice to the payor prior to making the report. There is no requirement that FRO obtain Court approval prior to making the report. There appears to be no basis for the Court to make an Order preventing FRO from making a report.
Like the Federal Licence situation, the only available options are to enter into a repayment plan satisfactory to FRO or obtain a new varied Court Order with a court ordered repayment plan.
Typically, the FRO begins making credit bureau reports early in the enforcement process. Credit Reports are historic in nature and are not deleted. Subsequent reports are filed based on varied court orders or payments made and in good standing but the original negative report can never be deleted.
Default Hearings
Default Hearing is the most extreme method for enforcing child support arrears that is available to the FRO - it carries the possibility of the inclusion of a jail term in the resulting Court order. Below we explain in more detail the support arrears related default hearings - the hearing procedure and the possible outcomes.
Initiating a Default Hearing by the FRO
To bring a payor in support arrears to a court on a Default Hearing, the Director of the Family Responsibility Office (the FRO) will serve a notice of default on the payor along with a statement of arrears requiring the payor to attend before the court to explain his or her default.
Once the notice of default is served, the payor will need to:
Typically, at the first appearance of the Default Hearing, the payor will be asked to meet with a FRO counsel to see if a mutually acceptable arrangement can be worked out. The FRO lawyers have standard instructions with respect to the length of time they are allowed to negotiate for repayment of the outstanding balance.
In most jurisdictions, the FRO counsel will ask to have the payor enter a consent default order which will incorporate the agreed upon terms of repayment. The counsel has no authority to agree with a payment plan that calls for payments less than the existing ongoing support order. That is the beginning point from the FRO counsel's standpoint.
The next thing the FRO counsel is looking to achieve is the repayment of the arrears as quickly as possible. If a payroll deduction is possible, the counsel will be eager to finalize the proceeding by putting a support deduction order in place. In this case, depending upon the amount of the arrears and the payor's financial circumstances, an amount of less than 50% (maximum deduction) could be negotiated.
All repayment plans negotiated at the default hearing carry with it the possibility of the inclusion of a committal or jail term in the consent order. Payors should be cautioned against entering into consent orders that commit them to jail in the event of a missed payment. Payors are entitled to request a hearing in front of a Judge to determine whether a committal term is appropriate in their case.
Adjourning the Default Hearing for a motion to change
If the amount of the ongoing support should be adjusted because of reduced earnings or changes with a respect to the children's status, the payor should be looking for an adjournment of the Default Hearing proceeding in order for a Motion to Change to be brought. The FRO counsel typically will agree to such an adjournment, provided that an acceptable temporary repayment plan is agreed to. That payment plan cannot be less than the existing order - even in cases where the income has dropped substantially, or the children are no longer residing with the recipient.
Disputing support arrears
If the payor disagrees with the amount of arrears set out in the Director's Statement, based on the payments made to either the Director or to the recipient that are not reflected in the statement, the payor should dispute the arrears and request a hearing on that issue.
It is the obligation of the Director of the FRO to prove the arrears before he or she can proceed to the repayment portion of the hearing. It may be necessary for the Director to call the recipient as a witness at the hearing on the arrears issue.
Possible outcomes of a Default Hearing
At the Default Hearing, unless the contrary is shown, the payor is presumed to have the ability to pay the arrears and to make subsequent payments under the order.
Once the arrears are established, the presumption operates, and it is up to the payor to prove his or her inability to pay the arrears in order to influence the outcome of the default hearing.
As a result of a Default Hearing in regard to child support arrears, the court may order that the payor:
There are numerous decisions by the courts dealing with the issue of the inability to pay for valid reasons. The relevant time for determining the payor's ability to pay is the time of hearing and not at the time of the failure to pay.
Typically, willful, or deliberate conduct is necessary to initiate the imprisonment. For example, when support payors transfer assets to other persons in order to avoid support payment enforcement, or have a history of willfully quitting jobs when support deduction orders are served or of making payments to ordinary creditors or preferred third parties at the expense of the child support order. In these situations, the courts typically become quite eager to impose a jail term as an incentive for the payor to come up with the necessary funds to bring the order into good standing.
Default Hearing is the most extreme method for enforcing child support arrears that is available to the FRO - it carries the possibility of the inclusion of a jail term in the resulting Court order. Below we explain in more detail the support arrears related default hearings - the hearing procedure and the possible outcomes.
Initiating a Default Hearing by the FRO
To bring a payor in support arrears to a court on a Default Hearing, the Director of the Family Responsibility Office (the FRO) will serve a notice of default on the payor along with a statement of arrears requiring the payor to attend before the court to explain his or her default.
Once the notice of default is served, the payor will need to:
- complete the Financial Statement,
- complete the default dispute,
- attach supporting documentation, including, notices of assessment, tax returns and paystubs,
- send it all to the Director's office by fax (416-240-2401), and
- file all of that with an Affidavit of Service in the court office where the default hearing is scheduled to occur.
Typically, at the first appearance of the Default Hearing, the payor will be asked to meet with a FRO counsel to see if a mutually acceptable arrangement can be worked out. The FRO lawyers have standard instructions with respect to the length of time they are allowed to negotiate for repayment of the outstanding balance.
In most jurisdictions, the FRO counsel will ask to have the payor enter a consent default order which will incorporate the agreed upon terms of repayment. The counsel has no authority to agree with a payment plan that calls for payments less than the existing ongoing support order. That is the beginning point from the FRO counsel's standpoint.
The next thing the FRO counsel is looking to achieve is the repayment of the arrears as quickly as possible. If a payroll deduction is possible, the counsel will be eager to finalize the proceeding by putting a support deduction order in place. In this case, depending upon the amount of the arrears and the payor's financial circumstances, an amount of less than 50% (maximum deduction) could be negotiated.
All repayment plans negotiated at the default hearing carry with it the possibility of the inclusion of a committal or jail term in the consent order. Payors should be cautioned against entering into consent orders that commit them to jail in the event of a missed payment. Payors are entitled to request a hearing in front of a Judge to determine whether a committal term is appropriate in their case.
Adjourning the Default Hearing for a motion to change
If the amount of the ongoing support should be adjusted because of reduced earnings or changes with a respect to the children's status, the payor should be looking for an adjournment of the Default Hearing proceeding in order for a Motion to Change to be brought. The FRO counsel typically will agree to such an adjournment, provided that an acceptable temporary repayment plan is agreed to. That payment plan cannot be less than the existing order - even in cases where the income has dropped substantially, or the children are no longer residing with the recipient.
Disputing support arrears
If the payor disagrees with the amount of arrears set out in the Director's Statement, based on the payments made to either the Director or to the recipient that are not reflected in the statement, the payor should dispute the arrears and request a hearing on that issue.
It is the obligation of the Director of the FRO to prove the arrears before he or she can proceed to the repayment portion of the hearing. It may be necessary for the Director to call the recipient as a witness at the hearing on the arrears issue.
Possible outcomes of a Default Hearing
At the Default Hearing, unless the contrary is shown, the payor is presumed to have the ability to pay the arrears and to make subsequent payments under the order.
Once the arrears are established, the presumption operates, and it is up to the payor to prove his or her inability to pay the arrears in order to influence the outcome of the default hearing.
As a result of a Default Hearing in regard to child support arrears, the court may order that the payor:
- Pay all or part of the arrears by such periodic payments as the court considers just, but an order for partial payment does not discharge any unpaid arrears;
- Discharge the arrears in full by a specified date;
- Comply with the order to the extent of the payor's ability to pay, but an order under this clause does not affect the accruing of arrears;
- Provide security in such form as the court directs for the arrears and subsequent payment;
- Report periodically to the court, to the Director, or to the person specified in the order;
- Provide to the court, Director or person specified in the order particulars of any future change of address or employment as soon as they occur;
- Be imprisoned continuously or intermittently for not more than 180 days, unless the arrears are sooner paid; and
- Be imprisoned continuously or intermittently for not more than 180 days on default in any payment ordered under this subsection;
There are numerous decisions by the courts dealing with the issue of the inability to pay for valid reasons. The relevant time for determining the payor's ability to pay is the time of hearing and not at the time of the failure to pay.
Typically, willful, or deliberate conduct is necessary to initiate the imprisonment. For example, when support payors transfer assets to other persons in order to avoid support payment enforcement, or have a history of willfully quitting jobs when support deduction orders are served or of making payments to ordinary creditors or preferred third parties at the expense of the child support order. In these situations, the courts typically become quite eager to impose a jail term as an incentive for the payor to come up with the necessary funds to bring the order into good standing.