Tsaros v. Director of the Family Responsibility Office, 2012 ONSC 2449

Citation and Court Information

CITATION: Tsaros v. Director of the Family Responsibility Office, 2012 ONSC 2449

DIVISIONAL COURT FILE NO.: 230/11

DATE: 20120420

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

WHALEN, SACHS AND HERMAN JJ.

BETWEEN:

LINDA TSAROS also known as EFTHALIA TSAROS Applicant

– and –

DIRECTOR OF THE FAMILY RESPONSIBILITY OFFICE Respondent

Deborah R. Squires, for the Applicant

Judith Parker, for the Respondent

HEARD at Toronto: April 20, 2012

Oral Reasons for Judgment

whalen j. (ORALLY)

[1]

Background

This is an application for judicial review from the Director’s refusal to enforce a support order. Section 7(1)(k) of the Family Responsibility and Support Arrears Enforcement Act (“the Act”) gives the Director discretion to refuse to enforce a support order where it would be “unreasonable or impractical” to do so.

2The applicant was the beneficiary of an order for child support filed with the Family Responsibility Office (“FRO”) in September 1999 based on a Divorce Judgment dated September 23, 1987. The child support so ordered fell into arrears. The applicant swore that in March 2001 her former husband persuaded her to advise FRO that the arrears had been paid directly to her in order to facilitate him in refinancing some property. She stated she had accepted his promise to pay her directly out of the refinancing. Accordingly, she made two telephone calls and sent five letters to the Director between March 12 and 19, 2001 indicating that she had received the arrears directly and seeking the immediate clearing of the arrears from FRO’s records. The Director accepted the Applicant’s request and cleared the arrears from his records.

3According to FRO’s records, the support payor continued to make monthly child support payments between 2001 and 2006, falling into arrears in March 2003 and paying off those arrears by July 2004.

4In 2003 the applicant initiated proceedings to vary the child support in order to meet the child’s post-secondary school expenses and an October 24, 2006 order varied the child support accordingly. That order was filed with FRO. The applicant then provided a sworn updated Statement of Arrears including for the disputed amount and an affidavit saying that the arrears she had previously indicated in 2001 were paid to her directly had not in fact been paid, and that she had been duped by her former husband into saying they had been paid. She asked the Director to reinstate the arrears and to enforce payment. The Director refused, as indicated above, and advised her that she should seek redress from the court. The applicant and her lawyer made further appeals to the Director to change his position and they gave explanations of what had happened. They also asked the Director to investigate with the payor and seek proof of payment from him. The Director indicated that he had spoken with the payor by telephone and that the payor maintained that he had paid the applicant directly in 2001. The Director refused to change his position.

[5]

Standard of Review

There is no dispute that the standard of review applicable to the Director’s exercise of discretion in this case is “reasonableness” and we agree.

[6]

Analysis

Section 5(1) of the Act states that it is the Director’s duty to enforce support orders filed with his office. Section 6(1) of the Act provides that the Director shall carry out that duty in the manner that seems practical to him, including commencing enforcement proceedings in the recipient’s name. However, s.7(1) lists a number of situations where the Director may exercise his discretion not to enforce a support order, including under s.7(1)(k) where “enforcement of the order is otherwise unreasonable or impractical”. This provision seems to be a “catch-all” for situations not listed in the previous subsections, which all fall generally within one of the following categories: it is uncertain how much is owing; whether any amount is owing, and/or; it is impractical to enforce, for example, because it is for a nominal amount or the payor is receiving social benefits.

7Courts have recognized that the Director acts for the benefit of the public as a whole to ensure that the court ordered support is paid in a timely and efficient manner. (See Pfeiffer v. Ontario, [2006] O. J. No. 3854, at para. 37). They have also recognized that as an agency of the state, FRO has a high responsibility to do its job in a professional and fair manner, not just for recipients but also for payors. (See Emhecht v. FRO, 2011 ONSC 2644, [2011] O.J. No. 2438 at para. 5). We are satisfied that the Director bears the same responsibility. He must act fairly and even-handedly both in respect of payees and payors, being careful not to prefer one over the other, appear to take sides, or to assume the role of a court in resolving controversies of fact and entitlement.

8Section 8.4(9) of the Act provides that the Director is not a party to a proceeding to determine a person’s entitlement to support under an order or on a motion for termination of an order. Where there is a dispute, it is reasonable for the Director to exercise his discretion to stop enforcing the Order and to require the parties to seek clarification from the courts. (See Lapchuk v. Ontario (Director of the Family Responsibility Office), [2005] O.J. No. 1110, at para. 24).

9Given the facts of this case, we conclude that it was reasonable for the Director to conclude that there was a dispute over whether the arrears in question were owing or not. The applicant had been repeatedly insistent in 2001 that the arrears had been paid directly and persistent in seeking clearance of the arrears from FRO’s records. She then waited six years to reinstate the arrears, even though the child was still in need of support and entitled to be supported after the arrears in question were cleared. Indeed, the payor continued to make child support payments after that time, falling into arrears but also bringing them up-to-date on one or more occasions. In the interval, the parties returned to the court for a variation of the amount and duration of child support without mentioning the arrears in question. These circumstances raised a real and substantial issue as to whether the arrears had been paid. Although the applicant had provided more recently sworn evidence of the alleged arrears, the Director had contradictory evidence, including an unsworn statement from the payor and the applicant’s own prior repeated oral and written statements that the arrears had been paid.

10We find that it was reasonable for the Director to conclude that there was a real and substantial dispute over the question of these arrears, that he could not take sides and that it was an appropriate issue for resolution by a court.

11We also agree with the Director that he is not mandated to investigate or determine a dispute of this kind.

12Accordingly, it was reasonable for the Director to conclude that it was “unreasonable or impractical” to enforce the arrears and also for him to exercise his discretion by refusing to enforce the arrears pursuant to s.7(1)(k) of the Act. In reaching this conclusion we are making no finding as to the merits of the applicants’ claim for the arrears.

[13]

Conclusion

For these reasons, the application for judicial review is dismissed.

SACHS J.

14I have endorsed the Application Record, “This application is dismissed for reasons given orally by Whalen J. Given the circumstances of this case we are making no order as to costs.”

WHALEN J.

SACHS J.

HERMAN J.