Can Racism or Discrimination Invoke The Public Policy Discretion to Set-Aside a Will?

In the appellate decision, Spence v BMO Trust Company, 2016 ONCA 196, the Ontario Court of Appeal considered whether the lower court erred in interfering with the testamentary freedom of a Testator by exercising its discretionary public policy powers.

In this case, the Testator, Rector Emmanuel Spence, executed a Will which disinherited his daughter Verolin, and grandson A.S., and bequeathed his assets to his estranged daughter Donna and her two children. Verolin challenged the validity of the Will on the grounds that it was void due to public policy concerns. Much of Verolin’s argument rested on the assertion that she was written out of the Will because (a) she had been involved with a man of ethic descent and, (b) she bore a child out of wedlock with this man.

The lower Court held the Will to be invalid due to a perceived intolerance, based on witness testimony, that while the testator had in his Will disinherited his daughter because they were estranged and had no relationship, he had actually disinherited her for having a mixed-race child. The lower court held that the Testator’s motive for disinheriting Verolin was based “on a clearly stated racist principle that violated public policy as well as human sensibilities”.

The Ontario Court of Appeal overturned this decision and provided three factual aspects that they felt were significant.

  1. Under the Succession Law Reform Act, Verolin had no statutory entitlement to her father’s Will. Her argument rested on the notion that she was a dependent and thus her right to support should have been protected. Section 58 and 60 of the Succession Law Reform Act essentially aim to mitigate situations where dependent’s are not adequately accommodated in a Will. The Courts held that independent adult children do not fall within the scope of the definition of “dependent.” Because Verolin was outside this scope she was not entitled to this claim against her Father’s Estate.
  1. The lower Court erred in that it allowed extrinsic evidence in the form of witness testimony, to be admitted to contest Mr. Spence’s objectives in constructing his Will. This was incorrect as extrinsic evidence should only be relied upon when the testamentary instrument or a clause in the testamentary instrument is ambiguous. The court found that Mr. Spence’s Will was unambiguous and that the lower Court erred in scrutinizing his motives.
  1. The Ontario Court of Appeal did not view the Will as discriminatory in nature. The Will itself made no mention of race or racist motivations on the part of Mr. Spence. Because of this, the Ontario Court of Appeal was of the belief that the Will did not offend public policy.

A Person’s freedom to distribute his or her property is deeply entrenched in the roots of our law and this decision reaffirmed that principle.

Next week, I will discuss some scenario’s where a Court could set-aside a will for being contrary to public policy.

Thank you for reading,

Rick Bickhram – for more information on Rick Bickhram, please follow this link.

 

 

 

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Prince – Underscoring the importance of a Will in the face of intestacy rules

Prince has been revered as one of the world’s biggest superstars having sold more than 80 million records worldwide and generating a fortune in the region of $300 – $500 million. His estate allegedly has enough unreleased music in it to carry on his legacy for more than a century and, as news of his death emerged, sales of his records spiked dramatically. Reports have surfaced to suggest that the award-winning artist was not married, had no children.  When a person dies without a will, they are said to died intestate. Prince died intestate, meaning he did not have a Will.

If Prince passed away with neither a Will nor a trust, then his sister and half-siblings stand to inherit his estate. Under Minnesota law, when someone dies without a Will, and with no spouse, children or parents, then the individual’s siblings become the heirs entitled to receive the assets in the estate.  Half-siblings are treated as full siblings under the state law, so Prince’s half-brothers and sisters would be on equal footing with his full sister, Tyka.

But first the question of children will have to be addressed.  Without a Will or trust, Prince’s estate would potentially pass to anyone who could prove that he or she was a biological child of Prince.  This could potentially open the floodgates to dozens, if not hundreds, of people coming to court asking for paternity tests to try to capitalize on Prince’s estate.  In fact, someone would not even have to be a biological child of Prince to share in the inheritance.  If someone could prove biological relationship as a brother, sister, or possibly even a niece or nephew of a deceased sibling of Prince, then that person could be an heir as well. Needless to say, over the next few months the world will be watching with interest to see who are Princes’ beneficiaries.

In Ontario, the laws surrounding intestacy can get complicated as well. Ontario intestacy rules are governed by the Succession Law Reform Act, RSO 1990, c. S.26. The following scenarios shed light to help better understand how intestate assets may be distributed.

Note that the definition of “issue” includes a descendant conceived before and born alive after the person’s death; (“descendance”) pursuant to s.1(1) of the Succession Law Reform Act. Essentially it is referring to children including a fetus, and children of half-blood, but not children adopted away.

Scenario 1: Deceased is survived only by a spouse, and there is no issue

Pursuant to section 44 of the Succession Law Reform Act, where a person dies intestate with property and is survived by a spouse and no issue, the spouse is entitled to the property absolutely.

Scenario 2: Deceased is survived by spouse and issue

Preferential Share

This is the amount reserved for the spouse irrespective of children and other family members (first $200k)

  • Pursuant to section 45(1) of the Succession Law Reform Act, and subject to section 45(3), where a person dies intestate with property having a net value of not more than the preferential share and is survived by a spouse and issue, the spouse is entitled to property absolutely.
  • Pursuant to section 45(2) of the Succession Law Reform Act, and subject to section 45(3), where a person dies intestate with property having a net value of more than preferential share and is survived by spouse and issue, the spouse is entitled to the preferential share absolutely
  • Note that pursuant to section 45(3)(a) of the Succession Law Reform Act, if there is a partial intestacy and the spouse gets less than the preferential share of $200k under the will, he/she is entitled to bring that up to $200k
  • However, pursuant to section 45(3)(b) of the Succession Law Reform Act, if a spouse already gets more than $200k under the will, partial intestacy won’t get him/her anything more.

Distribution Share

  • The distribution share is the residue of the property value after payment to the spouse is made under section 45 of the Succession Law Reform Act. This share varies by the number of issues and is not reduced by any amount the spouse received under the Will.

(1) If there is only one child:

  • Pursuant to section 46(1) of the Succession Law Reform Act, where a person dies intestate in respect of property and leaves a spouse and one child, the spouse is entitled to one-half of the residue of the property after payment under section 45

(2) If there is more than one child:

(a) Spouse gets 1/3 regardless of how many issue there are

  • Pursuant to section 46(2) of the Succession Law Reform Act, where a person dies intestate in respect of property and leaves a spouse and more than one child, the spouse is entitled to one-third of residue of property regardless of the number of surviving children.

(b) If there is one surviving child and a deceased child has an issue, the spouse’s share shall be unaffected

  • Pursuant to section 46(3) of the Succession Law Reform Act, where a child has died leaving issue living at date of intestate’s death, the spouse’s share shall be the same as if the child had been living at that date

(c) Remainder of residue of property will be split per capita (equally among issue)

  • Pursuant to section 47(1) of the Succession Law Reform Act, and subject to section 47(2), where a person dies intestate in respect of property and leaves issue surviving him/her, property shall be distributed, subject to the rights of the spouse, if any, equally among his/her issue who are the nearest degree in which there are issue surviving

(d) If children predecease intestate, then the children of those children receive what the parent would receive if the parent was alive

  • Pursuant to section 47(2) of the Succession Law Reform Act, where any issue of the degree entitled under (2) has predeceased intestate, share of such issue shall be distributed among his/her issue as in (1) and the share devolving upon any issue of that and subsequent degrees who predecease the intestate shall be similarly distributed

(e) If all of intestate’s children are dead but there are grandchildren, the estate is divided at the level of grandchildren in which they would share per capita.

Scenario 3: Deceased is survived by issue; no spouse

In this scenario the children would share the estate equally.

 Scenario 4: Deceased is not survived by spouse or issue – we must refer to the table of consanguinity

This scenario is governed by section 47(3)-(9) of the Succession Law Reform Act.

  • (3) If no spouse or issue is alive, then surviving parent(s) take all of the estate equally
  • (4) If the parents have also died then brothers and sisters share the estate equally, with representation being permitted among the brothers’/sisters’ children
  • (5) If the brothers and sisters have also died, then, nephews and nieces shall share the intestate equally, without representation – i.e. their children cannot make a claim on the estate
  • (6) If nieces and nephews have also died or do not exist, then, any other next of kin of equal degree to the intestate are eligible to take the intestate per capita
  • (7) Then finally, if there are no surviving family members to the deceased, the property becomes property of the Crown

Conclusion

From our analysis of Ontario’s intestacy rules it becomes clear that no matter what your family situation may be, intestacy does not take into consideration any intentions you may have for the distribution of your estate. For your peace of mind today and your family’s peace of mind tomorrow, making a Will is an easy, inexpensive solution.

Prince’s intestate status presents us with a contemporary example of the problem dying without a Will.  The wishes and intent of the person who died no longer matter.  With someone as iconic as Prince, that would truly be a shame.

Nevertheless, it sheds light on the importance of being up to date on all components that go into drafting a Will and protecting your family.

Rick Bickhram – for more information on Rick Bickhram, please follow this link.

Khloe Kardashian and Lamar Odom

Previous Los Angeles Lakers forward Lamar Odom recently filed his response to Khloe Kardashian’s divorce petition and it appears that both are in sync with the idea of a divorce.

Lamar lists the exact same date of separation as Khloe does, December 13, 2013 and her cited irreconcilable differences at the reason for their divorce their own attorneys, a rarity in Hollywood divorces. However, Lamar has asked the Judge to deny spousal support.

Now that Lamar has officially responded it seems like it is just a matter of time before their divorce becomes final.

In Ontario, while marriage has a date in which status is immediately bestowed, separation and break down of a family does not happen on one date – it happens over a period of time which eventually results in an order for divorce.

Divorce proceedings require couples to: (1) be married; (2) be ordinarily residents in the province for one year per section 3 of the Divorce Act and; (3) prove grounds that there has been a breakdown of the marriage per section 8 of the Divorce Act. If the Court is satisfied that these three conditions have been met, spouses can get an order for divorce governed under section 12-14 of the Divorce Act.

What does it mean when the Court asks for evidence of marriage breakdown?

In Khloe and Lamar’s case the controversial breakup spurred from alleged adultery by Lamar. In Ontario there are three breaches that can support a marriage breakdown.

(1) Living Separate and Apart, section 8(2)(a) Divorce Act: The first breach, requires a one-year separation. Pursuant to section 8(3) of the Divorce Act, one spouse must show an intention to live separate and apart for the one-year separation period, and an intention to destroy the matrimonial consortium.

Note that while physical separation is required,

It is possible to live under the same roof and be separated. If the date of separation is in dispute and the parties reside under the same roof courts look at the following factors to determine the date of separation in Dupere v Dupere:

  • Spouses occupy different bedrooms
  • Absence of sexual relations
  • Little if any communication between spouses
  • Wife providing no domestic services for husband
  • Eating meals separately
  • No social activities together
  • Spouses not sharing the living room/recreational facilities

Mental capacity is also required for intent and it must recognize and understand the three levels: (1) separation, (2) divorce and (3) instructing counsel. In essence, divorce requires slightly more capacity than separation (Calvert v Calvert).

(2) Adultery, s. 8(2)(b)(i) Divorce Act: This second breach happens to be the underlying cause for Khloe and Lamar’s divorce proceeding. It has been alleged that Lamar committed adultery and as a result, Khloe chose to file for divorce. In Ontario, once opportunity to commit adultery, and intimacy are established on a balance of probabilities, there is a burden on the alleged adulterer to call evidence in rebuttal sufficient to dislodge the preponderant evidence (Burbage v Burbage).

(3) Cruelty, s. 8(2)(b)(ii) Divorce Act: The final breach to evidence the breakdown of a marriage allows innocent spouses to file for divorce if there is cruelty in the marriage. Cruelty amounts to physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. Evidence of impact is required:

  • Objective: The impact must be of a grave nature and not merely conduct that is a manifestation of incompatibility of temperament.
  • Subjective: The impact depends on the circumstances of each particular case having due regard to physical and mental condition of the parties, their character and attitude towards the marriage relationship (Knoll v Knoll).

It is important to know and understand why you or your spouse are seeking a divorce but know that even where there is proof of a marital breakdown, the Court will investigate whether there is a bar to granting a divorce decree per section 11 and 21.1 of the Divorce Act. Reasons for a court not to grant a divorce include:

  • Collusion, s. 11(1)(a): This is an absolute bar to divorce as spouses cannot collude against the administration of justice.
  • Connivance and condonation, s. 11(1)(c): If either spouse has allowed or encouraged the adultery, spouses will be barred from divorce unless it is in the public interest to grant the divorce.
  • Reasonable arrangements for child support, s. 11(1)(b): The Court must satisfy itself that there have been reasonable arrangements for the support of children and the Court can stay a divorce until arrangements are made.
  • Removal of religious bars, s. 21.1: The Court can take action in a context where one spouse refuses to remove any religious barriers that would bar the other spouse from remarrying after the divorce is granted.

Conclusion

Divorce is never easy. For Khloe and Lamar it seems that adultery and media scrutiny has created a toxic environment that has stunted any chance at reconciliation.

Most divorces are one-sided. Very rarely, will a couple sit down and come to the decision to divorce, together. Normally a spouse who has already separated themselves emotionally from the marriage wants the divorce. That spouse have gone through an “emotional divorce” and now needs to be unattached legally from their spouse.

Whether you are the spouse (a) seeking the divorce, or (b) seeking reconciliation, there are important legal steps that can be taken in each case.

 

Conflict with the Estate Trustee

When it comes to an inheritance, not many of us realize how problematic the “life-changing lotteries” might become for everyone involved. They can create a lot of ill-will not only among distant family members, but also between siblings, parents and children.

Disputes between the estate trustee(s) and beneficiaries of the estate are as common as those between the beneficiaries themselves.  While many people who are preparing their estate plans are mainly preoccupied with the dilemma of ‘who gets what’, very few will thoroughly scrutinize the ability of the estate trustee(s) to perform his/her duties.

As such, while courts will always try to honour a testator’s intentions and wishes as to the chosen estate trustee(s), in certain circumstances a trustee may be removed. Generally, the removal may be initiated by (a) beneficiaries of the estate, (b) another co-trustee, (c) any person interested in the estate of the deceased or (d) at the trustee’s own volition.  Section 37(1) of the Trustee Act. R.S.O. 1990, c.T.37, gives the Court the authority to remove an estate trustee.

While the overarching principle and the main consideration in such application would be ‘the welfare of the beneficiaries’, courts will also look into clear evidence of necessity. The acts, misconducts or omissions of the estate trustee(s) should be of such a nature and degree as to endanger the administration of the estate. The applicant would be required to persuade the court as to the necessity of the trustee’s removal.

Historically, the case law recognized the following as sufficient grounds for the removal of the estate trustee(s):

incapacity (either through illness, age or inclination);

  • lack of bona fides;
  • misconduct;
  • substantial breach of trust;
  • bankruptcy of the trustee(s);
  • committing a criminal offence;
  • unwillingness to carry out the terms of the trust;
  • acting to the detriment of the beneficiaries;
  • personally benefiting from the trust;
  • permanently moving out of the jurisdiction;
  • a trustee’s lack of appreciation of his or her duties;
  • conflict of interests;
  • undue delays; and
  • pre-taking of compensation;

One should note, however, that there is no certain rule to each of these grounds and every removal case will be decided based on its own facts. In fact, this is not an exhaustive list of examples and there could be circumstances where certain individual grounds in and of itself might not be sufficient to grant the removal order. One such example is the 2015 decision of the Ontario Superior Court of Justice in Bunn v Gordon, 2015 ONSC 4768 where the beneficiaries of the estate raised several grounds in support of their application to remove the estate trustee (lack of care with the estate assets, disregard for the interests of the beneficiaries, failing to report to the beneficiaries, to name a few). Although individually in and of themselves the grounds were not sufficient to grant the removal order; however, the Court held that the relationship between the beneficiaries and trustees had become toxic such that it prevented the trustee from properly administering the Estate.  Therefore, the Trustee was removed.

Thoughtful consideration when selecting estate trustee(s) will help go a long way to reducing potential issues and ensuring you leave behind a positive and memorable legacy – so choose your estate trustee wisely!

Rick Bickhram – for more information on Rick Bickhram, please follow this link.

How Much Estate Planning is Enough?

As I was surfing the internet over the weekend, I came across literature on the need for society to take time to plan for the eventual transfer of their wealth from one generation to the other.  I think a good question that should be asked is how much planning is enough and what type of planning could insulate my estate from litigation?

I came across a 2013 Ontario Court decision, Park v. Park, in which the issue at hand was a contest between Sister and Brother for ownership of their parents’ home.

Mother and Father married each other in Korea during the 1950s.  Mother and Father had five children of the marriage, the eldest was the defendant, “Sister” and the youngest being the plaintiff, “Brother”.

In his evidence, the Brother indicated that he and his Parents arrived in Canada in 1982, and that his family started a doughnut shop which he worked long hours at.  The money that the family earned was pooled together and distributed by his Mother for family needs.

On November 29, 1990, Mother and Father purchased a home and title was taken in the names of Mother, Father and Brother as joint tenants.  The Brother argues that title to the Property was taken in joint tenancy with the expectation that he would eventually inherit the property.  The “family promise” that he would eventually become the owner of the home was made in recognition that he had given up his personal life for the family good.

A few weeks prior to his death Father severed the joint tenancy by a conveyance to himself as a tenant-in-common.  By his Will he left his entire estate to Sister.  Moreover, Father died after the lawsuit was commenced but before it reached conclusion.   Mother was moved to a long-term care facility and was unable to testify at the trial.

Brother wants to set aside the transfer of title in the Property so that on his Mother’s death he will become the sole owner of the property.

After lengthy evidence was taken from experts who gave their opinion on the Father’s mental health along with the Lawyer who facilitated the real estate transaction severing title to the property, the court held that the severance of the joint tenancy by the Father was a valid transfer.

The sister attempted to argue that the Brother held his share of the Property in trust for his Parents; however, the Court held that on the evidence produced it could not find that the Brother held his share of the Property in trust.

I found this case to be of interest because here we have hard working individuals who came to Canada in the 80’s with next to nothing and built a life.  They took time to plan; however, their estate was still strapped in litigation.  As I write this blog, I sit here thinking of how this could have been avoided?

Carpe diem.

Rick Bickhram – For more information on Rick Bickhram, please follow this link.

Man Ordered to pay $50,000 for not Marrying Former Fiancée

A Georgia man was sued by his former Fiancée for “breach of promise to Marry”, and the Georgia Court of Appeals has Ordered the Man to pay his former Fiancée $50,000 for breaching his promise.

In Court documents, it is alleged that the Man proposed to the Women and gave her a ring worth $10,000.  The Man and Women have a Child together and after accepting the Man’s proposal she left her job to raise their Child.  The man was subsequently caught cheating on his Fiancée twice.  The Fiancée alleges that the Man stated he wanted to be with both women; however, changed his mind and asked the Fiancée and the Child to move out.

In Court the Man argued that he had never intended to marry her and although he had given her the ring, he had never said the words ‘will you marry me’.   He also argued that the relationship had been based on an illegal pact because it had been a form of prostitution where he paid for sexual relations.  The Georgia Court ruled in favour of the former fiancée.

As odd as this ruling may appear, in a Canadian decision, Mott v. Trott, an action was commenced in 1941 for damages for breach of promise of marriage.  The Fiancée alleged that she and the Man became engaged in 1908 to be married and when the man had “improved his prospects in life”, he broke off the engagement. The Fiancée commenced the action in 1941, and at trial, on motion for non-suit, the trial judge withdrew the issues from the jury and dismissed the action holding that in 1919 the parties had not been engaged and the Limitations Act (Ont.) barred the right of action.  The trial judge’s decision was set aside by the Ontario Court of Appeal, and in 1943, the Supreme Court of Canada, held that there was some evidence open to construction by the jury, if it viewed it as so, indicating that the Man promised to marry the Fiancée up to shortly before the writ was issued, or that the jury might have inferred from the evidence that the parties mutually abandoned the contract when neither party insisted on its performance for an inordinate length of time; or the jury might have found that a breach occurred at least as early as 1919 – but that these were all questions for the jury.

What happened to that old saying: Promises are meant to be broken?

Have a great week.

Rick Bickhram – For more information on Rick Bickhram, please follow this link.

Rick Bickhram Appears on Family Matters

In Episode 212 of Family Matters, the Honourable Justice Brownstone discusses Wills and Estates.  Episode 212 is focused on disputes over a deceased’s estate.  Sometimes entire estates are depleted by endless litigation between rivaling factions of the deceased’s family.  In this not-to-be-missed episode of Family Matters, Justice Brownstone elicits helpful advice from his guests.  Rick Bickhram appears at the 14:29 mark onward.

 

Rick Bickhram – For more information on Rick Bickhram, please follow this link.

Caution: Don’t Double Dip From Your Pension When Dividing Matrimonial Property

When parties separate, a legal issue that is taken into consideration is the division of the matrimonial property.  The Family Law Act, sets out the method for the division of property upon the breakdown of marriage.   The formula takes into consideration the growth of each spouse’s net worth between the date of marriage and the date they separate (valuation date) and the difference is equalized between the parties.

Under the Family Law Act, a pension is considered “property” and must be included in the equalization of the net family property.  It’s common for the pension to be the largest asset the family owns aside from the matrimonial home.  The valuation and the subsequent equalization payment may pose a problem, since a pension is not accessible until a party retires.  What often occurs is a party will trade off equity in existing assets, such as the matrimonial home, for the pension; regrettably, this creates the risk of double-dipping.   Double dipping occurs where the pension has been included in the equalization payment and spousal support is claimed later, when the pension is the main or the only source of income of the payor spouse.  This was the case in the Supreme Court of Canada decision, Boston v. Boston

In Boston v. Boston, the parties separated after a 36-year marriage in which the wife was a homemaker with the primary responsibility for raising their seven children, while the husband pursued his career in education and financially supported the family.  The husband and wife consented to a judgment dividing their accumulated assets. The husband received approximately $385,000 in assets, of which $333,329 was attributable to the value of his pension. The wife received the matrimonial home, surrounding lands, household contents and RRSPs as her share of the assets, amounting to approximately $370,000.  The husband subsequently retired and his total pension income thereafter was $8,000 per month. The larger portion of the pension, $5,300 per month, came from assets he retained on equalization, while the smaller portion, $2,300 per month, was earned since separation and not part of the equalization of net family property. The balance of $431 per month the husband receives as a CPP benefit.  The Husband applied to reduce the amount of spousal support provided for in the consent judgment, claiming that his retirement, reduced income, and systematic depletion of his pension as capital amounted to a material change in circumstances. The husband submitted that, considering the earlier division of assets, the wife had an obligation to contribute to her own support and only the unequalized portion of his pension ($2,300) should be considered when determining support on a variation application. 

The Supreme Court of Canada agreed, holding It is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and then again as a source of income, particularly where the payee spouse receives capital assets which she uses to grow her estate.  To avoid double recovery, the Supreme Court of Canada held, that the court should, where practicable, focus on the portion of the payor’s income and assets which have not been a part of the equalization division when the payee spouse’s continuing need for support is shown. This would include the portion of the payor’s pension earned after separation and not subject to equalization.

Thank you for reading,

Rick Bickhram – For more information on Rick Bickhram, please follow this link.

 

Halifax’s Mayor Faces Allegations of Administering an Estate Inappropriately

Much has been written on the misgivings that beneficiaries encounter once they have learned that their inheritance has been squandered away as a result of an estate not being administered properly.  Another story has surfaced in Atlantic Canada, involving Halifax’s Mayor.

Mary Thibeault (the “Deceased”) died on December 7, 2004 leaving a Will that names the current Mayor of Halifax as her Estate Trustee, Mr. Kelly.  Mr. Kelly has been serving as Halifax’s Mayor for 12 years.   In her Will, the Deceased names 13 people and 5 charities as beneficiaries of her Estate.  It’s alleged that the Deceased’s estate is not complex.  Seven years after the Deceased’s passing, her estate has still not been administered and beneficiaries have still not received their inheritance.   

In February of this year, the Coast published the results of an 11-month investigation, which they commenced into the administration of the Deceased’s Estate.  The investigation raises many serious questions regarding the handling of the estate assets.  For instance, the Coast reports that between the months that the Deceased passed and the date that Mr. Kelly filed an inventory of estate assets, there was “considerable activity” involving the Deceased’s personal bank account, which was not accounted for in the inventory; particularly, $160,000 that was moved out of the Deceased’s account and into Mr. Kelly’s control.  In addition to the missing monies, under Halifax’s law, the Coast reports “after being named executor, the executor must notify all heirs within 30 days. Nearly seven years have passed since Kelly was named executor and there’s no indication in the court records that he has properly notified any of the heirs.”

Recently, in an article published by Herald Opinions, Mr. Kelly announced this past week that he would not reoffer as mayor.  The article respectively noted, that “in his 27 years in public life, he often worked a 90-hour week. This took a toll on his personal life. His marriage had ended. It also interfered with his ability to execute his friend’s will…You could see it on his face. In the last year or so, the mayor’s looked tired, pale and drawn, like a man wearing his job and his political legacy on his sleeve.”  Administering an estate is not an easy task and consideration must be given to the right person, who has the time to do the job done right.

Thank you for reading,

Rick Bickhram – For more information on Rick Bickhram, please follow this link.

What is the Family Responsibility Office (FRO)?

The Family Responsibility Office is an office of the Government of Ontario that enforces child and spousal support orders and collect support payments for families.  Essentially, the function of the FRO is to allow payments to flow from the person who pays the support (the “Payor”) to the person who receives it (the “Recipient”).

At the time of the Parties’ divorce or separation, the court may issue a support order and a support deduction order (“SDO”). The support deduction order gives the FRO the authority to deduct the support payments from the Payor’s income.  Generally, the court will automatically send to the FRO the SDO once it has been entered.

If a Payor does not meet their support responsibilities, the FRO has legal authority to take enforcement action to recover the money owed, pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996.  Enforcement actions that the FRO can take against the Payor include:

  • garnishing the Payor’s bank accounts
  • garnishing money the Payor may be entitled to receive from the Government of Canada (for example, income tax refunds, employment insurance benefits, Canada Pension Plan benefits, and Old Age Security benefits)
  • reporting the Payor to the credit bureau
  • suspending the Payor’s driver’s licence
  • suspending the Payor’s Canadian passport or other federal licenses
  • placing a lien on the Payor’s personal property
  • issuing a writ of seizure and sale for property the Payor owns
  • seizing the Payor’s lottery winnings, and
  • starting a Default Hearing, which could result in up to 180 days of jail time.

Communicating with the FRO can be difficult, as the FRO does not have the legal authority to unilaterally change the support obligations of the Payor.  In 2010, a support Payor committed suicide allegedly because the FRO commenced enforcement proceedings against him.  The gentlemen and his wife separated in 1996 and he had been paying support since then; however due to a down-turn in the trucking industry, the Payor missed two child support payments totaling approximately, $4,000.  This prompted the FRO to suspend his commercial (truck) license. This left the Payor in a position where he was unable to work and generate an income.  As the Payor could not work, his support obligations continued to accumulate.  Eventually, the FRO took him to court, requesting $10,000 or a jail sentence of 188 days in lieu thereof.  The Payor was therefore stuck in a downward spiral of being unable to pay child support obligations, nor was he able to work without his commercial license, which allegedly led to his demise.

It’s important to understand that there are remedies available to a Payor who is currently being faced with threatening actions by the FRO.  For instance, under the Family Responsibility and Support Arrears Enforcement Act, a Payor can obtain an Order that the FRO refrain from taking action, such as suspending the Payor’s driver’s license. 

Thank you for reading,

Rick Bickhram – For more information on Rick Bickhram, please follow this link.