Focus: Family Responsibility Office facing liability

While clients of the Family Responsibility Office have sought legal redress against it in the past, none have succeeded. The case of Ashak v. Ontario (Family Responsibility Office) now proceeding to trial looks set to be the first one to test the limits of the office’s defences. Legal observers, however, are torn between a desire to motivate the agency to improve its practices and a concern that the prospect of litigation may affect its performance.

It’s an unchallenged fact that the office has an enormous task to perform in the collection of support payments. “I can’t even imagine the enormity of the task,” says Christine Marchetti of Stanchieri Family Law. “That being said, there are a lot of people who are dissatisfied with how their individual cases are dealt with.”

The office currently has a caseload of approximately 180,000 cases and about 380,000 clients. It has recently changed to a case-management model that allows clients to have direct access through a caseworker, a manager, the director or the assistant deputy minister when they’re unhappy with the service they receive. However, in the event of a mistake with no possibility of recovery, there’s no recourse except to try the courts. Past cases, however, have been unsuccessful as the courts found the organization wasn’t a public entity that owed a duty of care to private citizens in those particular circumstances.

In that case, the plaintiff mother filed a support order with the office that the husband ignored. He was reportedly living in Iraq, a country that has no reciprocal agreement with Ontario. Eventually, the government suspended his Canadian passport, a move that prompted him to make a surprise visit to the Family Responsibility Office. After several visits, he succeeded in persuading the agency to remove the suspension.

The agency’s officer involved said she had taken into account the urgent nature of his request to return to Iraq to remove his child and spouse to a place of safety in advance of the U.S. war on the country. Because of local custom, they were unable to travel without him. She also noted he had retained counsel, commenced a motion seeking to change the support order, and borrowed $5,000 required as a surety in the proceedings. He then left Canada and died in Iraq in 2004.

The mother brought an application to seek damages from the office for breach of duty; negligence; gross negligence; breach of fiduciary duty; and/or vicarious liability. The case has so far survived a motion for summary judgment in the Superior Court. The decision reached the Divisional Court, which split the appeal into two issues. One part proceeded to the Court of Appeal, which dismissed the appeal on June 6. The case is on track to proceed to trial probably in late 2014.

The office maintains that the wife, as a private citizen, has no cause of action against a public body. Justice Duncan Grace reviewed an extensive amount of case law on the issue when considering the motion for summary judgment. “In my view, a prima facie duty of care arises in this case from the legislative scheme and the interactions between FRO and Ms. Ashak,” he stated.

“It was close, direct, long-standing, and crucial to Ms. Ashak and her children. It was one which imposed on Ontario ‘an obligation to be mindful’ of Ms. Ashak’s legitimate economic interests.”

John Bruggeman of Kostyniuk & Bruggeman represents the plaintiff. He describes the case as a typical civil litigation matter regarding the duty of care and negligence. “We argued that there is a fiduciary duty of care to people on social assistance. The regular individual who is not on social assistance has the option of withdrawing support and pursuing it themselves. A person on social assistance does not have that option. They must go through the FRO.”

He believes litigation is a necessary avenue for those with complaints. “It came to light in the litigation that some representatives of the FRO handle 1,500 files each. You can’t expect a very high quality of work, so there is the prospect of other terrible decisions. And I think this was a terrible decision.”

Family lawyer Andrew Feldstein recognizes the problems inherent in such a large organization. “The problem is knowing what policies and procedures they have. A suspension of a passport can be done without the recipient even being involved and it can be rescinded without the recipient being involved. The FRO needs to consider whether it is obligated to give notice to the recipient and invite comments. In this case, it would have made a lot of sense to do that.”

Within the family law context, Marchetti believes that if the plaintiff is successful, there will probably be a lot more court challenges from “not just recipients but payers, too. If this becomes an avenue to deal with this, people will use it.”

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