What is FRO? And what do they do?

The Family Responsibility Office (FRO) is a program from the Government of Ontario that helps families get the support they are entitled to by collecting, distributing and enforcing child and spousal support payments.  The FRO’s duty has two parts: first they collect payments from the person who pays the support (the payor) and second sends payment to the person who is entitled to it (the recipient).  

Under what authority (Acts) does FRO act? 

The FRO has been given jurisdiction and the authority to operate under the Family Responsibility and Support Arrears Enforcement Act, 1996 and the Interjurisdictional Support Orders Act, 2002.  

Are child and/or spousal support orders automatically enforced by FRO? How can you remove FRO enforcement?

Yes.  In Ontario, when a person is ordered by the court to pay child or spousal support payments, the support order is automatically filed with the FRO. If you would like to unregister your order from the FRO, you will need to ensure the payor is not in arrears and both parties (payor and recipient) are agreeable to unregister the order from the FRO. You will have to pay to reinstate RFO enforcement.

What does FRO not get involved with?

The FRO will not get involved in child custody or access issues, make payments to a recipient when the payor misses a payment, and/or change the terms of support orders or domestic contracts (including the support amount).  While the FRO has been given authority to make a lot of changes, most of these issues will require the involvement of the courts. 

What is a support deduction order?

A support deduction order outlines the amount to deduct or reduce from the payor’s income to cover the support payments.  These may be ordered by the court when the judge is hesitant of whether the payor will make their payments.  With support deduction orders, the FRO has the authority to ask the payor’s employer to deduct the support payments from the payor’s income.  The payor is given a chance to voluntarily pay FRO before FRO will garnish their wages.

What are the two forms you need to submit with your draft order, draft approved as to form and content by OP, and endorsement?

An endorsement for the support order is generally the final step in a motion. A draft order is prepared by you if you were seeking the support order and mirrors the endorsement from the judge. You will be required to submit the endorsement and the draft order approved as to form and content by the opposing party. This is the most common situation. It is also possible to submit minutes of settlement, written consents, or written agreements as long as it shows the opposing party is agreeable to the order. This is critical to show the judge or adjudicator that the order is consented to by both parties. It is important to note that you should include everything in your consent order that you want to come into effect.  Once the draft order or minutes of settlement is filed, it becomes the order that will be enforced, but it will only be done as per the terms outlined.  If you leave out any critical terms, you will not be able to enforce it without going back to court. You need to also submit 2 FRO forms: Support Deduction Order and Support Deduction Information Form.

How do you register with and access FRO? What does FRO need to receive first?

The FRO first needs to receive your order along with accompanying documents from the courts. After FRO receives these documents, the FRO will register your case for you. Both the payer and recipient should expect to receive a welcome package via mail and contacted by the FRO to welcome you to the program, confirm information, explain how the program works, and assign a seven digit case number.  After you are registered, the FRO will mail you a letter that includes details for you to login to FRO Online to access your file online. 

How do you draft a support order including dos and don’ts?

A support order is a direction issued by a court or judge for one person to pay child and/or spousal support to another person. In Ontario, when a person is ordered by the court to pay child or spousal support payments, the support order is automatically filed with the Family Responsibility Office (FRO) after you have submitted all the forms with the court.  

SUPPORT ORDER DO’S

A clear and complete support order will help FRO enforce it.  Use the standard terms for support orders set out in Ontario Regulation 182/08 made under the Family Responsibility and Support Arrears Enforcement Act, 1996.   For the support payments, make sure you quantify the: dollar amount, frequency, start date, and expenses.  

If costs are awarded, make sure the portion “related to support and maintenance” is specified in the order so that we can enforce those costs as “support.”  Include support termination dates, where appropriate.

Specify the amount or portion of arrears that is owed to a social service agency, as well as any amount owed to the support recipient.

If you have more than one child, it is important to note that a global child support order has a single support amount for multiple children. When seeking this type of order, if appropriate, specify the dollar amount that will be payable for the remaining children if one child’s support payments will end at a future date.  This is an addition that can save yourself from having to go back into court to re-establish the amount when one child is no longer part of the child support payment.   

If there are special expenses, get out special expenses (such as medical, child care and extracurricular expenses) as a fixed amount or as an expense that must be claimed on a sworn statement of arrears submitted by the support recipient. If you don’t do this, FRO won’t be able to enforce special expenses.

Specify an obligation to “pay,” rather than “share” special expenses.

SUPPORT ORDER DON’TS

When you draft a support order:

• Don’t refer to support being determined or changed annually as “in accordance with the Child Support Guidelines.” We cannot recalculate support in this manner. As a result, we may not be able to collect support.
• Don’t include, in the body of the order, any terms about withdrawal from FRO by the parties.
• Don’t include support provisions that are conditional on certain prerequisites that cannot be determined on the face of the order.
• Don’t include foreign currency amounts in Canadian orders.
• Don’t specify cost-of-living provisions for child support. They are not permitted under the Child Support Guidelines and we cannot enforce them.

TIPS FOR CHANGING SUPPORT ORDER

It’s easier for FRO to enforce a support order that’s clear and complete.

Arrears

Fix the amount of any arrears. Include an arrears payment schedule.

Start accrual on the same day

Start the new support accrual on the same day of the month or week as the prior order. This will avoid a double accrual at the month or week of the change.

Previous support order

Include any terms of the prior order that affect the support (for example, termination date).

Obligation to disclose income

Include reference to the annual obligation to make income disclosure, where child support is to be paid, as required by the Ontario Child Support Guidelines or the Federal Child Support Guidelines.

For example, for as long as child support is to be paid, the payer and recipient, if applicable, must provide updated income disclosure to the other party each year. The payer and recipient must send an updated income disclosure within 30 days of the anniversary of this order in accordance with section 24.1 of the child support guidelines.

What is an interjurisdictional order? Who do you contact if you have one?

An interjurisdictional support order is an out-of-province or out-of-country support order.  Ontario’s Interjurisdictional Support Orders Act is a statute that sets out the process for the enforcement of these orders from other jurisdictions.   Recipients are generally able to enforce a spousal support order if the payor lives in a reciprocating jurisdiction.  

A support order made in a Canadian reciprocating jurisdiction must be registered for enforcement in the Ontario court.  Once registered in court, the support order will be automatically sent to the FRO for registration.  

A support order made in a reciprocating jurisdiction outside of Canada must be registered for enforcement in the Ontario court.  In these situations, the court mails the support payor a notice of the registration.  The notice advises the payor that they have 30 days to ask the court to set aside the registration. This gives the payor an opportunity to argue that the support order cannot be enforced in Ontario.   (If your support order is from outside of Canada, please ensure the country is a reciprocating jurisdiction.  For more details visit the Interjurisdictional Support Orders Act)

How do you change a support order?

To change a support order (final order), you would need to go to court and file a motion to change form (Form 15). In most cases, you must attend at least one case conference to discuss the main issues in your case before you are allowed to bring a motion for a temporary order.  

 

Discuss how spousal support is determined for incomes over $350,000.

As a general starting-point:  The higher the support-payor’s income, the higher the spousal support that must be paid.   But for those who earn over this $350,000 threshold, there is special guidance found in the federal government-endorsed Spousal Support Advisory Guidelines (SSAGs), which guide the Family Courts in these scenarios. The courts still have final discretion so they can follow or deviate from the SSAGs as they see fit.  The SSAGs amounts should be used as a guideline and can be changed by the court under their discretion.  The courts are given this power to adjust rulings to fit the case before them and the special circumstances that accompany it. 

 

What is the “ceiling” and “floor”?

The ceiling and floor refer to upper and lower ends of the SSAGs that are the outer limits of its guidance.  The ceiling can be described as those with an income at $350,000/year.  The floor would refer to those earning $20,000/year.  The SSAG does not attempt to outline amounts above the ceiling or below the floor as the circumstances for these people will need the courts discretion to determine a reasonable amount for spousal support.  For example, an earner below the floor of the SSAG may be overburdened by support payments. 

 

Discuss the two judicial approaches to determining spousal support for incomes over $350,000?

The courts can apply one of two approaches in determining spousal support for incomes above the ceiling or $350,000:

The “minimum plus” approach: The SSAG is used to point to an initial, minimum support amount at the $350,000 income level (taking into account all of the usual factors).  Then, the court uses its discretion to top-up that initial amount.

The “pure discretion” approach: There is no initial minimum; instead the court solely applies a discretionary approach after looking at all the usual support-calculation factors.

It is important to note that both these approaches use the discretion of the courts for the amount above $350,000 so even if the same approach is applied, the final support value can still differ.

 

Discuss when budget is important to look at?

Budget is used to determine whether the amount the court will award in spousal support is sufficient to support the individual.  This is especially important in cases of high income earners because the judge may compare budgets to see if someone is changing their budget drastically following the separation between the parties.  While high income earners are accustomed to certain lifestyles, the budget will be used to determine the validity of their claims.  For those earning above $350,000, which falls outside the SSAG, a budget can help the court determine an accurate amount for support.  The budget will also be looked at comparatively to any equalization received or expected to receive from the Net Family Property. 

 

Discuss contest between “economic merger” and “transfer of capital” 

After a long term marriage the concept of “economic merger” or equalizing incomes may come into play. In Cork v. Cork¸ Warkentin J. commented that the objective of equalizing incomes after a long term marriage has less force in high income cases.  Nor is a long term marriage with children enough to support a SSAG award if there is no evidence led of a high lifestyle during the marriage or ongoing need. The higher the income, the higher the monthly awards generated by the SSAG calculation. Even after a long term marriage with children the amounts may seem little more than a wealth transfer.

OR

A factor that tends to increase the amount of spousal support to the higher end of the range of the SSAG calculations is the length of the marriage and the resulting concept of merger of the parties’ economic lives over the course of their marriage. The parties structured their lives and lifestyle based upon one of the parties income.  At this stage it seems like the solution is a transfer of capital to make up the difference between these parties. 

There is another factor that’s considered, which tends to put the amount of spousal support to the lower end of the SSAG range.  This is the work incentive of the party who is not working, usually as a result of an economic merger.  The courts find that it is not appropriate to ensure both parties’ net disposable incomes are the same when one spouse puts significantly more effort to work.  

 

Discuss retroactive spousal support.

A retroactive spousal support order typically goes back to the date that the support recipient gave the payor effective notice of the claim. Depending on the circumstances, the date of effective notice may be: the separation date, the date that support was first demanded; or the date a court application was filed.

The court has a lot of discretion when it comes to claims of retroactive support, but the general rule is that these types of claims will be limited to the past three years.

In deciding whether a spouse is entitled to retroactive support, the court will consider all of the circumstances within the relationship. The two most common considerations will be the reason for the delay in seeking support and whether this amount will overburden the payor of the spousal support.  

Once entitlement to retroactive support has been established, the SSAGs are used to calculate the lump sum of back-support to be paid. Calculating spousal support back to the commencement date is in many cases straightforward since it is based on actual, known incomes.  This is much different than calculating spousal support for the future on current income levels.

Retroactive spousal support is set up to address past obligations. This is support that should have been paid in the interim while you were waiting for the court order or separation agreement to be made.  Retroactive spousal support is normally added to the regular spousal support payment once a court order is filed or a separation agreement is made. 

 

Discuss difference between arrears and retroactive spousal support.

Retroactive spousal support is different from arrears spousal support, which is support payments that have been calculated and are past due.  These arrears payments accumulate when they are past due.  Retroactive spousal support is given to those who were entitled to and should have been collecting spousal support.