Child Support Arrears & Driver's Licence Suspension
One of the methods that FRO often uses to enforce child support arrears is driver's licence suspension.
The FRO's statutory power to suspend the driver's licence of a child support payor is substantial and complex to understand. Ignoring letters from the FRO is often a devastating mistake. The FRO has many powers available to enforce support orders and in order to exercise those powers, the FRO must follow the legal rules that govern the way in which they can use them. Most of those powers (but not all) require that notice be given by ordinary mail. If you do not open the mail and act accordingly you can lose your rights to protect yourself from the actions of the FRO. Many cases have occurred where support payors have strong cases that were compromised badly because of the failure to open the letter in a timely way and obtain good legal advice immediately.
Options available to payors threatened by driver's license suspension
FRO's power to enforce child support through driver's licence suspension is governed by the FRO legislation (FRSAEA) and, accordingly, the FRO may direct the Registrar of Motor Vehicles to suspend the driver's licence of a payor who is in default of a support order filed with the FRO.
Payors are given notice of the intention to suspend and are given an opportunity to:
- pay the arrears in full, or
- enter into a repayment arrangement with the FRO Director
The notice will be sent to you by ordinary mail to the last known address filed at the Director's office and the Ministry of Transportation. If you have moved without advising the MTO to change your address, you may be served by ordinary mail at your old address and never receive notice about the driver's licence suspension.
Alternatively, the notice gives the payor an opportunity to bring a Refraining Order motion, preventing the Director from suspending his or her licence for a period of 6 months. The refraining order must be obtained before the expiry of the suspension date in the licence suspension notice. The court does not have jurisdiction or authority to make a refraining order after that date. Obtaining quick legal advice when a notice of intention is received is critical.
Gathering together Notices of Assessment for all years since the arrears accrued together with current pay stubs and completing a sworn Financial Statement are necessary first steps in order to negotiate a repayment plan with the FRO or bring the refraining order.
There is no point bringing a refraining order motion if there is no intention to bring a Motion to Change (Vary) the child support order. If there has not been a change in financial circumstances since the making of the original support order, then a motion to change or vary will not be successful and a refraining order will not be granted. If that is the situation, the approach should be to either borrow the money to pay the support arrears and prevent the driver's licence suspension, or negotiate a repayment plan based on full income disclosure. Typically a support deduction notice will be put in place to secure the terms of the repayment plan.
If income tax returns are not up to date, the payor will be in significant difficulty obtaining a repayment arrangement or a refraining order.
If the payor fails to comply with the terms of the payment arrangement, the FRO Director may issue a final notice of driver's licence suspension, in which case the payor does not have any right or ability to obtain a refraining order from the court.
Similarly, if the payor fails to comply with the terms of the refraining order, his or her driver's licence may be suspended without any right to a further refraining order. It is important to realize that the purpose of issuing the refraining order is to give the payor an opportunity to obtain a new support order on a Motion to Change or Vary because of a change in financial circumstances. Under the legislation, a refraining order is granted for a period of 6 months. If the Support Order is not varied in that six month period the licence could thereafter be suspended - unless the payor first obtains a one-time only order extending the time of the refraining order for a further period of 3 months so the motion to change can be finalized.
At the time the refraining order motion is considered by the court, there will be payment terms included therein which set out the amounts that the payor is to pay towards the support and the arrears as a condition of the issuance of the refraining order at that time.
If you are having issues paying child support arrears and are threatened with driver's licence suspension, we recommend that you ask for legal advice immediately.