How to Address The Family Responsibilty Office, Motions to Vary and Support Arrears

The Director of the Family Responsibility Office (FRO) has the authority to strictly enforce support orders through the use of various enforcement remedies. For a payor, falling behind on support payments can mean losing their Driver’s License, not being able to get a loan or a credit card, or even finding themselves in jail (See article entitled “What’s the Family Responsibility Office”). So what can you do if you have a justifiable explanation for falling into arrears on your payment?

Firstly, contact FRO and submit a Voluntary Arrears Payment Schedule Proposal Form along with a sworn FRO Financial Statement for their review. With FRO you may be able to arrange an agreeable repayment schedule for your arrears in addition to your regular support payments. Note that FRO will still be able to take measures to garnish support payments and other enforcement procedures, however as long as this agreement is followed it is likely that any further enforcement remedies will be avoided.

However, if you already have a Court Order against you for the repayment of arrears, FRO does not have the authority to vary the terms of the Order. Likewise, if you are seeking to vary the amount of support that you have been ordered to pay, it is not within FRO’s power to alter these arrangements.

In these situations you will have to go back to Court. FRO will continue to take any necessary measures to ensure payment of arrears and support orders until you return to Court to vary the existing Order.

To start, the debtor must bring a Variation Application (See article entitled “Motions to Vary Support”). Once satisfied that a satisfactory material change exists, a Court has discretion to cancel or reduce arrears.

Under what circumstances will a Court exercise such discretion? The Ontario Court of Appeal killed the “one year rule” in Filipich v. Filipich. The Court there stated that there is no fixed formula in considering the cancellation or reduction of support arrears, although it endorsed the considerations set out by Soubliere J. in Gray v. Gray.

In considering to cancel or reduce arrears, a Court will likely consider:

1. the nature of the obligation; whether contractual, or judicial;
2. the on-going financial capacity of the respondent spouse;
3. the on-going need of the custodial parent and the dependent child;
4. unreasonable and unexplained delay on the part of the custodial parent in seeking to enforce payment of the obligation tempered, however in the case of child support with the fact that such support obligation exists for the child’s benefit and cannot be bargained away to the prejudice of the child;
5. unreasonable and unexplained delay on the part of the respondent spouse seeking appropriate relief from his obligation; and
6. where the payment of substantial arrears will cause undue hardship, the exercise of the court’s discretion on looking at the total picture, weighing the actual needs of the custodial parent and the child and the current financial capacity of the respondent, to grant a measure of relief, where deemed appropriate.

One can see therefore that each case depends heavily on its facts.