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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 08-20-2010, 11:12 PM
AtALoss AtALoss is offline
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Default The suit against FRO moves forward part1

Many have told us over the years that you cannot sue FRO. hmmmm Seems that we have just served them. Guess this is what happens when the Government and the Courts go wrong.
Below is the draft of the Statement of Claim. Our primary motivation in all of this is that we hope to see change to FRO & Family law that makes it a better system for all of us. It is going to be a long haul but that is what it takes to make real change happen. We have recently had a criminal lawyer join us in this pursuit and he intends to bring this story to the media. So giving everyone here the heads up guess you can say.

CLAIM

1. The Plaintiff, Richard, claims as against the Defendants, Mary and the Family Responsibility Office (“the FRO”) [collectively referred to as the ‘Defendants”]:

a) An Order for a retroactive reduction of child support and re-payment of all over-payments of child support, in or around the principle amount of $56,337.80 paid by Richard to Mary for the benefit of the children, such support which was enforced by the FRO;
b) An Order that the Defendants be jointly liable for the above re-payment;
c) An Order for pre and post judgment interest pursuant to the Courts of Justice Act;
d) An Order for costs on a full-indemnity basis;
e) An Order for exemplary and punitive damages;
f) An Order for all costs incurred by Richard to defend himself at the Ontario Court of Justice level;
g) An Order for costs against the FRO for their conduct in these proceedings.

Description of the Parties

2. Mary and Richard were married on Mar 24, 1979 and were divorced by the Order of Justice Murphy dated April 9, 1992 (“the Divorce Order”).

3. There were three children born of the marriage, all of whom are now adults; Child1 born Sept 10, 1979, Child2 born Oct 3, 1980 and Child3 born Mar 9, 1984.

4. The FRO became involved in the family law proceedings given there was a support obligation at the time of separation. The original family law proceedings bore court file number XXX

The Order for Support

5. Pursuant to the parties’ Divorce Order Richard was obligated to pay the sum of $100 per month per child for a total child support obligation of $300 per month. Paragraph 5 of the Divorce Order specifically limited his obligation and provided that it would terminate upon 1 of the following events:

a.the child(ren) cease(s) to be children of the marriage:
b.the child(ren) marry;
c.the child(ren) become 18 years of age;
d.the child(ren) complete(s) their chosen program of study, up to a max of 4 successful years of post secondary education;
e.the child(ren) become(s) self-supporting; or
f.the child(ren) die(s).

6. On Sept 3, 1996, by way of Consent Order, the Divorce Order was varied by the Order of Mr. Justice DiSalle (“the Variation Order”). A review of the order will indicate that paragraph 4 of the Divorce Order was varied, but not paragraph 5. Richard’s support obligation increased to $500.00 per month for the three (3) children of the marriage; however, the terminating factors as set out in paragraph 5 of the Divorce Order were not varied. Accordingly, after the order of Justice DiSalle, Richard was obligated to pay support for each child until one of the terminating factors occurred.

Termination of Support

7. The oldest child of the marriage, born Sept 10, 1979 turned 18 on Sept 10, 1997. Child1 suffers from a disability, but as of the age of 18 years began collecting a disability supplement from the Ontario government of just under $9,000 per year.

8. Child2 was born on Oct 3, 1980 and turned 18 on Oct 3, 1998.

9. Child3 was born on March 9, 1984 and turned 18 on March 9, 2002.

10. Notwithstanding the terminating factors as contained in the Divorce Order and continued by virtue of the order of Justice DiSalle, the FRO continued to enforce support beyond the 18th birthday of each child. Significant additional monies were collected on behalf of the children, when, by court order, Richard’s support obligation had ceased.

Incorrect Enforcement of Support Arrears

11. For the purpose of determining what over-payment was made when the FRO continued to incorrectly enforce support beyond the children’s respective 18th birthdays, Richard has divided the $500 support obligation flowing from the Variation Order by three, so that his obligation for each child was $166.66.

12. The last support payment for Child1 should have been made in Sept 1997. At that time, Richard should have begun to pay a reduced level of support ($166.60 x 2 = $333.20/mo). Between Oct 1997 and Oct 1998, Richard should have paid a total of $4,331.60 in support. Instead, he paid a total of $6,500 in support, for a total over-payment of $2,168.40.

13. The last support payment for Child2 should have been made in Oct of 1998. Starting in Nov of 1998, Richard should have begun to pay a further reduced level of support of $166.60 per month for the care and maintenance of Child3. Richard should have continued to pay $166.60 in support until Child3 turned 18 years of age in Mar of 2002. During this period of time (Nov 1998-Mar 2002) Richard should have paid a total level of support of $6,830.60. Instead, he continued to pay $500 in monthly support for a total payment of $20,500 and a total over-payment of $13,669.40.

14. The last support payment for Child3 should have been made in Mar of 2002. At that time, pursuant to the Divorce Order, support should have terminated for all three children. However, the FRO continued to garnish from Richard’s pay, and eventually for his Employment Insurance and Income Tax Returns. Richard continued to pay the full quantum of support ($500 per month) from Apr 2002 through to Dec 2008 when at a default hearing it was determined that support should have terminated completely upon Child3’s 18th birthday, and that the Court had no jurisdiction to continue to enforce his child support obligation. During this period of time (Apr 2002 – Dec 2008) Richard should have paid $0.00 in support. However, he actually paid $40,500 in support.

15. The FRO incorrectly enforced, and his former spouse incorrectly accepted, $56,337.80 in over-payment of child support. This is merely the principle sum incorrectly garnished to satisfy a support obligation that should have been reduced upon each child’s 18th birthday and finally terminated completely in Mar 2002. Arrears of support accumulate under FRO legislation and compound interest is calculated based on the Courts of Justice Act. Over-payments of support should also be subject to compound interest calculations, or, if the Court deems fit, based on an average of the quarterly interest rates.

sorry folks, have to post this in 2 parts

Last edited by AtALoss; 08-20-2010 at 11:18 PM. Reason: added more thought
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Old 08-20-2010, 11:13 PM
AtALoss AtALoss is offline
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Part 2.....

16. Richard unsuccessfully attempted to bring a motion to vary and terminate his support obligations. It was only until he secured counsel to defend against a default motion brought by the FRO in Dec 2008 that Richard was successful in establishing that support was terminated and there were no arrears to enforce because there was no support to enforce.

The Order of Justice Keast

17. On Dec 3, 2008, at the FRO default hearing, Justice Keast ordered that the hearing be dismissed as the court did not have the jurisdiction to hear the matter given there were no arrears to enforce.

18. At the hearing, the FRO advanced two arguments as to why they continued to enforce support and arrears notwithstanding that the terminating event had occurred. The first argument was that The Divorce Order and subsequent Variation Order, when read together, are open to interpretation and construction. The FRO argued that although the terminating events as outlined in the Divorce Order are clear, the phrase “children of the marriage” as found in the Variation Order is vague.

19. The second argument put forth by the FRO was that they relied on a notation taken at a Case Conference before Justice Hennessy, and that they believed Justice Hennessy was interpreting the two orders so that support extended for the youngest child beyond her 18th birthday.

20. Justice Keast also released a cost endorsement related to the default hearing. His Honour found the FRO arguments disingenuous and devoid of merit. The Divorce Order is clear, defined and unambiguous as it relates to the terminating events for support. He found both the Divorce Order and Variation Order to be clear and unambiguous, without any requirement for interpretation other than their own, common sense meaning.

21. His Honour stressed that costs against the Director (of the FRO) only occur in exceptional circumstances. He determined that in this matter, it should have been patently clear to the Director as to when the support obligation would terminate; on that termination date, the Director should have collected no further support. Moreover, His Honour points out that on two separate instances at Conferences in this matter, the presiding Judges’ commented to the Director that the terminating event was precise and clear, yet the Director ignored these comments.

The Defendants’ Culpable Actions & Damages

22. Given the Director’s behaviour, Justice Keast found that this matter was one of special circumstances and costs were reasonable and appropriate. His Honour made a cost award of $5,339.26.

23. In addition to the culpable action of the Director, the Respondent, Mary, also had a hand in the incorrect enforcement of support and arrears. She did nothing to correct the erroneous over-payment, notwithstanding that she was aware of the terminating provisions and that she should no longer receive any support when the parties’ youngest child turned 18 years of age.

24. Mary’s failure to take any action to remedy the over-payment resulted in a significant windfall which she has taken no steps to correct. Mary has clearly been unjustly enriched by accepting these over-payments for years after Richard’s support obligation should have been reduced, and eventually terminated.

25. The years of incorrect garnishment has resulted in great personal hardship for Richard. His income tax returns and employment insurance have been garnished, and the persistence of the enforcement eventually led to the failure of his business.

26. Richard’s wages were garnished at a rate which left him with little to survive. For a period of time he was homeless. His credit for the time period prior to Justice Keast’s Dec 8, 2008 decision was destroyed by the FRO proceedings and enforcement.

27. Through the course of the incorrect enforcement of arrears, a bench warrant has been issued for Richard, and his driver’s license was suspended. The suspension of his driver’s license led to the calling in of various business loans Richard had in connection with his heating and cooling business; this led to the demise of his business, XXX Inc.

28. As a result of the Defendants’ conduct, Richard is claiming punitive and exemplary damages.

29. The Plaintiff proposes this action be heard in Sudbury.
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Old 08-21-2010, 08:27 AM
logicalvelocity logicalvelocity is offline
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I presume this tort is against "her majesty the Queen in right of Ontario"


Proceedings Against the Crown Act, R.S.O. 1990, c. P.27
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Old 08-21-2010, 01:06 PM
AtALoss AtALoss is offline
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You do presume correctly.
Dec3 2008 I was given an order that states that the support order expired in 2002 and therefore FRO had no Jurisdiction as of that date. While what the recipient did was reprehensible knowing full well all 3 of my kids were self supportive she chose to lie to the court in 2005. It created a he said she said situation. It is pitiful that the Court and FRO did not choose to verify anything. Case in point FRO called me in Nov 07 to say that I could not receive credit on the arrears until the youngest turns 18. To say the least I was stunned by thier misinformation. She was turning 24 in 5 months time. We are told FRO keeps on file the birth certificates etc. Had someone just taken 5 mins to check. In 2009 FRO asked us why I had not asked for copies of the birth certificates. I had and then sent them a copy of the original request (2004) from the Motion to Vary. They have had nothing to say about it to me since then. So this among many reasons are why we include the Crown. Just a note that there are 6 points in the Enforcement Act where the Director can step in. She just chooses not to exercise that right.

The hardest thing that we have had to contend with is of all of those that we have spoken to no one will do anything and we have inquired to everyone from the PM on down to our local govt. As well the trickle down effect from one small mistake, what we feel an illegal garnishee. They all feel that they had no part. Sure one can argue that they were just doing thier job and following orders. Just thought the accountability Act was a measure to make sure that things are correct. As well there are several points where Constitutional Rights are being violated. So as you see this is not a simple fight. But it is one that has to happen to create fairness in the system.

Richard & AtALoss
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Old 08-21-2010, 01:14 PM
logicalvelocity logicalvelocity is offline
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So what your saying is the Director went over and above it's mandate under statute?
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Old 08-21-2010, 01:30 PM
AtALoss AtALoss is offline
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Yes I believe so.
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Old 08-21-2010, 01:37 PM
AtALoss AtALoss is offline
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She was warned twice by the Court that the Order had expired and chose to do nothing. Probably did not help that 1 the other parties lawyer in all likelihood had a hand in not relaying properly and FRO choose also to ignore that they Terminated the support as of Dec2004, which is shown on the Dr Statement and a manager of thiers admitted the may well have had a letter of termination from the recipiant. On Dec 08 our lawyer requested the manager and the letter be produced that day but FRO just ignored the request.

So many thing went wrong in this case.

Last edited by AtALoss; 08-21-2010 at 01:39 PM. Reason: corrected typos
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Old 08-21-2010, 01:58 PM
logicalvelocity logicalvelocity is offline
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I guess what you're saying is the Director went beyond it's mandate by continuing to enforce an order that was no longer in effect?
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Old 08-21-2010, 04:52 PM
AtALoss AtALoss is offline
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Most definately. My youngest turned 18 March 9 2002. 2004 I put in my motion to vary. Dir Statement claims support terminated Dec 2004. That manager claims a letter was sent in about July 2005. as of that time they had me still in arrears by 7800. So they continued to fight in court until the Order of 2008. Going back to 2005 they pulled my Dr Lic and that made my bank call in all my business loans. The company was gone by the end of the year along with my 16 employees my house and basically my life. I was now homeless for 8 months until meeting AtaLoss in 2006. From there it has been a long haul but we manage day to day and are somewhat on our feet. While I was at the homeless shelter I met several others that were going through the same as me. This has left an impact on me as to the senselessness of all of this and that is mainly what I want changed. While we go through the motions etc to have family issues dealt with there has to be some kind of support system in place for us so called deadbeat dads.... many of us are not that by choice. I paid my support during the time required and it was not until I went through the proper channels to have it stop that they started.
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Old 08-21-2010, 06:38 PM
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and the Defendant's views to aforementioned is?
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