Collecting child and spousal support is a frustrating process for the recipient. Many support payers fall behind in their payments even if a Court order or separation agreement provides for a monthly amount of child or spousal support,
In Ontario, all Court ordered support payments (whether child or spousal) are enforced by the Family Responsibility Office (“FRO”). This is mandatory unless the parties agree to withdraw from FRO enforcement or, in some cases, if the recipient elects to pursue delinquent support payments on his or her own. The FRO will also enforce the support provisions of a separation agreement provided the separation agreement is filed with the Court and the separation agreement registered with the FRO.
The FRO takes steps to collect support arrears. It has broad powers of enforcement that range in severity from working out a payment plan for the arrears with a defaulting payor, to suspending the driver’s license and passport of a defaulting payor, to requesting that the Court order the arrest and jailing of a defaulting support payor for up to 180 days.
In the event that a support payor lives outside of Ontario, the FRO will assist with respect to the obtaining, varying, and enforcing support orders where the support recipient lives in Ontario provided that the support payor resides in a jurisdiction outside of Ontario that is a reciprocating jurisdiction under the Interjurisdictional Support Orders Act. All of the Canadian provinces and territories, the United States, and a number of other countries are reciprocating jurisdictions.
Many support recipients experience difficulties communicating with the FRO and having the FRO follow up on his or her case as a result of the FRO having an extremely heavy case load. Recipients therefore may seek to enforce support arrears on their own, with or without the assistance of counsel.
Under the Family Law Act (Ontario), the Court has the power to make an order that requires property be transferred to or in trust for or vested in a support recipient. Further, the Court may order the securing of support payments under the order by way of charge on property or otherwise. The effect of these provisions is that a support recipient may request that the Court transfer all or some of the defaulting payor’s assets, including retirement savings plans, investments, and property, to satisfy his or her outstanding support obligation. These remedies are available to recipients regardless of whether the FRO assists them with his or her case.
Ken Nathens is a partner in the law firm of Nathens Siegel, a Toronto firm that restricts its practice to divorce and family-law issues. Ken has experience in all aspects of divorce and Ontario family law and devotes much of his time to assisting clients with custody and access disputes.