Caution: This page contains GENERAL LEGAL INFORMATION ONLY.
It is NOT LEGAL ADVICE nor a replacement for talking to a lawyer and getting legal advice about your case.
The law can be complicated and the details of a case can be even more complicated! There are exceptions for every rule.
What you do not know can harm you. Rely on general legal information AT YOUR OWN RISK.
—Support Enforcement & fRO —
What is "FRO"?
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? 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? FRO has a variety of other enforcement steps open to them to pursue payments from the payor, including:
The purpose of some of these measures is to push the payor into action - to get the payor to:
FRO is limited on what they can agree to:
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?
Beware: Payors regularly are sent to jail for refusal to pay support or refusal to deal with the problem. FRO need only provide:
Amount of Support Ordered Too High 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:
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 Within 10 days of being served with the Notice, the payor should serve on FRO and file with the court:
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?
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! |
Michaud Family Law • 416-707-7976 • 2 County Court Blvd., Suite 434, Brampton, Ontario, L6W 3W8
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