Agency too aggressive, says lawyer

Ontario’s Family Responsibility Office should see its enforcement powers curbed after it was forced to pay costs for its unreasonably aggressive pursuit of a father of three, according to the man’s lawyer.

Annamaria Perruccio’s client, Richard DeBiasio, was forced to obtain a refraining order against the FRO to stop it from suspending his driver’s licence, despite months of attempted communication with his FRO caseworker, and later with the agency’s legal services department, about an upcoming court date for a motion to terminate child support payments to his  former wife. 

On April 4, Ontario Superior Court Justice Clifford Nelson ordered the FRO’s director to pay DeBiasio $7,500 for his trouble, finding the agency exercised its discretion to enforce the original child support order unreasonably by continuing to come after DeBiasio when it was “abundantly clear” there had been a material change in circumstances because the children he was paying support for had moved in with him. 

“This is a situation that occurs all too often, where you a have a government agency with a vast number of resources up against a support payor who is forced to incur unnecessary expenses,” says Perruccio, a family lawyer with Vaughan, Ont. firm Sutherland Law. “Even when they have the benefit of legal help, it shows how someone’s life can be taken over. It’s an abuse of power. I hope this decision is used to avoid these situations in the future, because it’s hindering the faith we should have in these government agencies.”

Perruccio says she would like to see an amendment to provincial legislation that would reduce the FRO’s authority to strictly enforce support orders when a material change of circumstances has occurred, especially when a court date has been set in the near future to decide the matter.   

“As soon as the FRO becomes aware that there is a court proceeding at play, they should stop. I think it’s time for statutory reform to restrain the director from enforcing orders in those circumstances,” she says.
“It’s akin to civil matters, where an appeal stays a monetary court order. I think that’s a novel idea that would assist both payors and the FRO.”

Joshua Henry, a spokesman  for the Ministry of Community and Social Services, said he would not comment on the case because it is still in the appeal period, but he added in a statement that MCSS “is currently considering possible implications for policies or practices.” 

 “We will make any necessary changes to ensure payees receive the money they deserve and that all parties are treated fairly,” Henry added.

Mike Marra was involved in a similar case two years ago, when his client won full recovery of the costs of a refraining order after the FRO went back on a promise not to enforce a support order while he applied to have it varied.

“This is the latest example of judges sending a very strong message to the FRO to stop creating unnecessary litigation in the family court system, yet nothing is changing,” he says.

In DeBiasio’s case, the FRO’s legal team fell short, according to Nelson’s judgment. 

DeBiasio and his wife divorced in 2008, ending a marriage that had produced three children. Before the divorce was finalized, a judge had granted the mother custody of the two younger children (DeBiasio v. DeBiasio). The oldest child lived with DeBiasio, who was also ordered to make child support payments to his former wife of $1,800 a month. By the summer of 2015, both the younger children had moved in with their father, and negotiations began between the parents to change the support order, resulting in an agreement to terminate the payments.

In September 2015, a judge denied the consent motion to terminate, requesting to hear more details on the mother’s situation, and a motion date was set for late December. Meanwhile, the FRO had embarked on its enforcement schedule, reporting DeBiasio to the Credit Bureau for his failure to pay support.

Soon after, the FRO took its first step towards garnishment of DeBiasio’s wages, prompting his lawyer to contact the agency. However, according to Nelson’s judgment, a caseworker there said that the FRO could not look behind a court order, and was compelled to enforce it, despite the upcoming court date to vary the order.

In November, the FRO’s enforcement efforts marched on with the issuing of a first notice to suspend DeBiasio’s driver’s licence. This time, Perruccio wrote to legal services, demanding a halt to further enforcement and offering to settle without the need for a refraining order to stop the driver’s licence suspension. However, there was no reply from the FRO’s lawyers for almost a month, two weeks after DeBiasio had already won his refraining order.

The delay caused Nelson to find that the “FRO failed to provide timely and meaningful responses to the inquiries of the payor’s counsel,” adding that FRO counsel “owe the same duty of responsibility to other counsel as does any lawyer in Ontario. Timely and meaningful communication is the expected standard of behaviour.”