Jul 22, 2013

Holding the Family Responsibility Office Responsible

Toronto Family Law Blog

No matter what side of the fence they are on, clients seem frustrated with the Family Responsibility Office (FRO). Whether one client claims FRO is not collecting support fast enough or another thinks FRO is collecting too much support, it seems everyone has a complaint. FRO was established to collect, distribute and enforce child and spousal support payments in this province. Every year, FRO handles more than 180,000 cases, represents nearly 400,000 people and collects about $650 million in support payments. With that amount of work, I suppose they were bound to get it wrong every once in a while….and the 2013 decision in Ashak v Ontario (Director, Family Responsibility Office) is about trying to make it right.

Pursuant to a final order, a husband was ordered to pay child and spousal support to his former wife. The support order was filed with FRO for collection and enforcement. The husband left the jurisdiction and was thought to be in Iraq – a country with which Ontario has no reciprocal support enforcement agreement. The husband defaulted on support payment. Collection efforts were undertaken, all of which failed. The husband later travels to Ontario. Due to his non-payment of support, the federal government and FRO manage to have husband’s Canadian passport suspended (under the Family Orders and Agreement Enforcement Assistance Act.)

The Husband goes to FRO and wants them to authorize the reinstatement of his passport, claiming he was unaware of the support order. FRO tells the husband that unless he secures a support variation (either court ordered or on consent) or until he pays of the arrears, his passport would remain suspended.

A few months later, the husband reappears at FRO and informs them that his lawyer was seeking a variation order. Big fib. Regardless, after a few attendances, FRO authorizes the federal government to remove the suspension of husband’s passport. As you would expect, the husband left Canada soon afterward and has not been seen since.The wife sued FRO, stating that the office’s conduct was substandard.

The wife sought damages for breach of duty, negligence, gross negligence, breach of fiduciary duty, and/or vicarious liability. FRO sought to have the action summarily dismissed, claiming there was no genuine issue for trial since the wife, as a private citizen, had no cause of action against a public body.

The Ontario Superior Court of Justice dismissed FRO’s summary judgement motion and allowed the case to proceed. The court held that a duty of care arose from the legislative scheme and the interactions between FRO and the wife. The task of enforcing a support order is assumed by the Director of FRO upon its filing. In this case, the support order was being actively enforced when the events in question occurred. Justice Grace found that effective enforcement by FRO would have yielded recovery for the wife and that economic harm to the wife and the children was a foreseeable consequence of negligent enforcement.

Since FRO’s summary judgement motion failed, the case will be proceeding to trial. Stay tuned to find out whether this wife and other support recipients have a remedy against FRO if and when that office is negligent.

Photography by rumpleteaser

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