The Family Responsibility Office (“FRO”) is a government agency tasked with enforcing child and support awards. FRO has significant enforcement power – the minister can garnish your wages and take your tax returns, amongst other things. If arrears have accrued under a support order, the FRO has the authority to collect ongoing support as well as arrears. Sometimes, FRO enforces an Order that does not accurately reflect the support payor’s ability to pay, leaving the support payor with arrears that he or she lacks the means to pay and should not be paying in the first place.
A support payor can make an application to the court to retroactively discharge, charge, or suspend a term of a child support order, under section 37 (2.1) of the Family Law Act. The court will look to various factors to determine whether or not support arrears should be rescinded or varied including, but not limited to:
Whether the payor seeks to vary arrears based on a current ability to pay or a change of circumstances that occurred when the payment ents came due. A payor’s request for recision based on a current inability to pay is unlikely to be successful.
The ongoing needs of the support recipient and the child.
Whether there was a reasonable excuse for the payor’s delay in applying for relief
The ongoing financial capacity of the payor and his or her ability to make payments towards the arrears.
The conduct of the payor including any voluntary payments, co-operation with the support enforcement authorities, compliance with disclosure obligations etc.
Any hardship that may be occasioned by a retroactive order reducing or rescinding arrears.
The Application under section 37 (2.1) of the Family Law Act usually takes the form of a motion to change. However, if there are custody and access issues, a fresh application may be necessary, if no custody and access order is in place.
Even if you bring an application to rescind your arrears, the Support Deduction Order will continue to operate, which can be a serious problem if you lack the means to pay FRO. In that case, you may need to bring another, separate motion to suspend the operation of the Support Deduction Order.
Under Section 28 of the Family Responsibility and Support Arrears Enforcement Act, a court can suspend the operation of a Support Deduction Order, thereby preventing FRO from enforcing the support order. To suspend the order, the court must find that it would unconscionable to require the payor to pay support payments through a support deduction order.
Unfortunately, the process to stop FRO from enforcing on arrears is quite complicated. If you are dealing with unfair support arrears, and need assistance bringing an application or motion, please contact Purves-Smith Law at the phone number, above. Purves-Smith Law provides family law advice in the Guelph and Kitchener-Waterloo area and can offer various payment options, including limited-scope retainers and payment plans.