• Family Responsibility Office (FRO)
• Dealing with FRO: Free Evaluation
• Child Support in Ontario
• Child Support Arrears & Variation
• Retroactive Child Support
• Termination of Child Support
• 50% Support Deductions
• Default Hearings
• Driver's Licence Suspension
• Passport Suspension & Credit Reporting

Default Hearings

Default Hearing is the most extreme method for enforcing child support arrears that is available to the FRO - it carries the possibility of the inclusion of a jail term in the resulting Court order. Below we explain in more detail the support arrears related default hearings - the hearing procedure and the possible outcomes.

Initiating a Default Hearing by the FRO

To bring a payor in support arrears to a court on a Default Hearing, the Director of the Family Responsibility Office (the FRO) will serve a notice of default on the payor along with a statement of arrears requiring the payor to attend before the court to explain his or her default.

Once the notice of default is served, the payor will need to:

• complete the Financial Statement,
• complete the default dispute,
• attach supporting documentation, including tax returns and paystubs,
• send it all to the Director's office by fax (416-240-2401), and
• file all of that with an Affidavit of Service in the court office where the default hearing is scheduled to occur.

Negotiating repayment plans with a FRO counsel

Typically, at the first appearance of the Default Hearing, the payor will be asked to meet with a FRO counsel to see if a mutually acceptable arrangement can be worked out. The FRO  lawyers have standard instructions with respect to the length of time they are allowed to negotiate for repayment of the outstanding balance.

In most jurisdictions, the FRO counsel will ask to have the payor enter into a consent default order which will incorporate the agreed upon terms of repayment. The counsel has no authority to agree with a payment plan that calls for payments less than the existing ongoing support order. That is the beginning point from the FRO counsel's standpoint.

The next thing the FRO counsel is looking to achieve is the repayment of the arrears as quickly as possible. If a payroll deduction is possible, the counsel will be eager to finalize the proceeding by putting a support deduction order in place. In this case, depending upon the amount of the arrears and the payor's financial circumstances, an amount of less than 50% (maximum deduction) could be negotiated.

All repayment plans negotiated at the default hearing carry with it the possibility of the inclusion of a committal or jail term in the consent order. Payors should be cautioned against entering into consent orders that commit them to jail in the event of a missed payment. Payors are entitled to request a hearing in front of a Judge to determine whether a committal term is appropriate in their case.

Adjourning the Default Hearing for an order adjustment

If the amount of the ongoing support should be adjusted because of reduced earnings or changes with a respect to the children's status, the payor should be looking for an adjournment of the Default Hearing proceeding in order for a Motion to Change to be brought. The FRO counsel typically will agree to such an adjournment, provided that an acceptable temporary repayment plan is agreed to. That payment plan cannot be less than the existing order - even in cases where the income has dropped substantially or the children are no longer residing with the recipient.

Disputing support arrears by the payor

If the payor disagrees with the amount of arrears set out in the Director's Statement, based on the payments made to either the Director or to the recipient that are not reflected in the statement, the payor should dispute the arrears and request a hearing on that issue.

It is the obligation of the Director of the FRO to prove the arrears before he or she can proceed to the repayment portion of the hearing. It may be necessary for the Director to call the recipient as a witness at the hearing on the arrears issue.

Possible outcomes of a Default Hearing

At the Default Hearing, unless the contrary is shown, the payor is presumed to have the ability to pay the arrears and to make subsequent payments under the order.

Once the arrears are established, the presumption operates and it is up to the payor to prove his or her inability to pay the arrears in order to influence the outcome of the default hearing.

As a result of a Default Hearing in regards to child support arrears, the court may order that the payor:

1. Pay all or part of the arrears by such periodic payments as the court considers just, but an order for partial payment does not discharge any unpaid arrears;
2. Discharge the arrears in full by a specified date;
3. Comply with the order to the extent of the payor's ability to pay, but an order under this clause does not affect the accruing of arrears;
4. Provide security in such form as the court directs for the arrears and subsequent payment;
5. Report periodically to the court, to the Director, or to the person specified in the order;
6. Provide to the court, Director or person specified in the order particulars of any future change of address or employment as soon as they occur;
7. Be imprisoned continuously or intermittently for not more than 180 days, unless the arrears are sooner paid; and
8. Be imprisoned continuously or intermittently for not more than 180 days on default in any payment ordered under this subsection;

Imprisonment resulting from not complying with the repayment plan agreed upon or ordered during the Default Hearing does not relieve the payor from making the arrears payment that was ordered. It is simply dead time until the arrears are paid.

There are numerous decisions by the courts dealing with the issue of the inability to pay for valid reasons. The relevant time for determining the payor's ability to pay is the time of hearing and not at the time of the failure to pay.

Typically, willful or deliberate conduct is necessary in order to initiate the imprisonment. For example, when support payors transfer assets to other persons in order to avoid child support arrears enforcement, or have a history of willfully quitting jobs when support deduction orders are served or of making payments to ordinary creditors or preferred third parties at the expense of the child support order. In these situations the courts typically become quite eager to impose a jail term at the Default Hearing, as an incentive for the child support payor to come up with the necessary funds to bring the order into good standing.