Are you sure all payments have been made?

In the case, Jeffery v. Ontario (Director, Family Responsibility Office), the Ontario Superior Court of Justice emphasized that the Family Responsibility Office (“FRO”) has a right to enforce payments.  This case illustrates the importance of making sure there are no outstanding payments to the FRO regardless of an agreement or Order between spouses releasing further support obligations.

Background

The applicant, who had been making regular support payments in accordance with the terms of prior court orders, made a payment to the FRO which was rejected by the applicant’s bank on the basis of non-sufficient funds (“NSF”) in the amount on $4,725.25. However the applicant subsequently paid this amount to his wife directly.

The following year, a Court Order was made on consent, that the applicant and his wife had resolved certain issues and also provided that “all child and spousal support arrears and all costs payable by the applicant to the respondent are extinguished.”

The Order did not refer to any monies owing to the FRO and a Notice of Withdrawal from the Family Responsibility Office was subsequently sent to the FRO. However, the FRO, nonetheless continued enforcement proceedings against the applicant.

The applicant brought an Application with the Court and argued that the FRO cannot pursue the amount because it was already paid to his wife and furthermore, that an Order was granted extinguishing support payments.

The respondent argued that the relief sought by the applicant is in the nature of injunctive relief and that the Court has no jurisdiction to grant such relief as the FRO is a Crown agent.

Analysis

The Court analyzed various legislation, including the Proceeding Against the Crown Act, where at section 14, (1) states that there is no injunction or specific performance against the Crown.

The judge also notably mentions the Family Responsibility and Support Arrears Enforcement Act at section 57(2) which states

“despite anything in this Act, the payor shall not be credited with making a payment until the money for that payment is received by the Director and if a payment is made but not honoured, the amount of the payment shall be added to the support arrears owed by the payor.”

In the judge’s view, the NSF payment amounts to a payment “made but not honoured”. The applicant argued that an Order was made terminating support obligations and that the FRO should only enforce support payments that have not been made.

The judge using the decision in Ontario (Director, Family Responsibility Office) v. Kitching, stated that the FRO was not a party to the Order that the Order was between the applicant and his wife and therefore the FRO has “clear jurisdiction to continue to enforce a support deduction order in spite of an order.”

The judge concluded by stating that it is the legislation’s intention that the FRO has a right to continue collection of amounts arising where an NSF cheque is provided to them, and that the FRO may continue to collect any and all monies owing to them.

This case is notable as it acts as a reminder to all counsel and parties, that just because an Order has been made extinguishing support obligations, parties must make sure that there are no outstanding amounts owed to the FRO, as the Order made is between the parties exclusively, and does not include the FRO.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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