Some of the worst complaints about the British Columbia family law justice system arise from litigants dealing with the Family Maintenance Enforcement Program (“FMEP”), called the Family Responsibility Office in Ontario.
Support enforcement programs permit parents and spouses who have court orders or agreements providing for child or spousal support payments to register their orders or agreements with the enforcement program in their province, at no cost to the registrant.
The protocol is that once an agreement or order is registered, the payee parent or spouse must pay support to FMEP, no longer directly to the recipient. FMEP ensures that the recipient parent or spouse receives the payment monthly, and in cases where a payee fails to pay, they take steps to enforce the payment of the support.
Interestingly, a payee does not have to be in arrears of support to be monitored by FMEP. I remember years ago when a client of mine agreed to pay support for his wife and children, an agreement that was incorporated into a court order. My client’s wife registered with the Program as she was entitled to, however, my client was most distressed when he received a letter from FMEP addressed, “Dear Debtor”. My client made every payment every month on time and was insulted by the program’s cavalier use of the term “debtor”. He was certainly not a debtor, just a regular guy whose wife registered with the program.
Sometimes recipients enter the program out of spite for their former spouse, however, 99.9% of the cases involve payees who have fallen behind in their court ordered payments.
In a recent Ontario case, a typical scenario unfolded for Richard DeBiaso, who paid child support to his ex-wife for the support of the two children residing with her, with a set-off because he had one child living with him. It is not uncommon that as children mature they switch homes and move from mom’s house to dad’s house. That’s what occurred in the DeBiaso case where over time all the children resided with their father.
Mr. DeBiaso negotiated new terms for child support with his former wife, entered into a new agreement and made arrangements to appear in court to finalize their new arrangements. Unfortunately, Ms. DeBiaso had already registered with the Family Responsibility Office, (“FRO”) who were unaware of the new support agreement that had yet to be confirmed by the court.
The first Mr. DeBiaso heard of any problems was when FRO sent a letter advising him that they were reporting him to the credit bureau. Shortly thereafter FRO issued a garnishing order to his employer which prompted his lawyer to send a letter to FRO advising of their mistake and the pending court order. FRO was unmoved–they were enforcing the order they had received from Mr. DeBiaso’s wife and had now taken steps to have his driver’s license suspended. Needless to say, FRO was not responsive to any communication and regularly ignored letters from his lawyer, also refusing to accept phone calls.
Mr. DeBiaso finally obtained a court order directing FRO to cease their collection efforts. He then asked the court to order FRO to reimburse him for his legal fees, an amount close to $10,000. The court reviewed numerous other decisions ordering FRO to pay costs, noting that most of these cases involved “aggressive enforcement actions on the part of FRO”.
Justice Nelson awarded Mr. DeBiaso the sum of $7,500 saying:
“In this case it was made clear to the FRO caseworker that there was a dispute over the amount of arrears owing. It was made abundantly clear that there had been a material change because of the move of the children. While I understand that FRO has a mandate to enforce, it seems to me that insisting on enforcement by way of licence suspension, when it is likely that the matter will be before the court within a very short period of time, is an unreasonable exercise of the Director’s mandate to enforce.
…the caseworker was kept fully apprised of all relevant information about the motion to change. The refraining motion was December 10, 2015; the motion to change was scheduled for December 30, 2015. The insistence by the Director on proceeding with enforcement under such circumstances is not only costly to the individual involved but costly to the court in terms of time allotted to the case.”
It should be noted that FMEP’s and FRO’s inappropriate attitude while serving the public is not limited to payors who have arrears of support. It is also nigh impossible for recipients to be heard in a timely manner. The British Columbia program is contracted to a large American corporation that makes oodles of money, with little apparent concern for customer relations.
DeBiaso v. DeBiaso 2016 ONSC 2253
Lawdiva aka Georgialee Lang