Suing FRO? – Ashak v. Ontario (Director, Family Responsibility Office)

The case at hand deals with whether the Family Responsibility Office (FRO) can be sued for negligence or substandard behaviour.

This case is important because through numerous cases the FRO, has always successfully raised a large number of defences. However, depending on the outcome at trial, this case may require them to adopt different standards.  And it may make them liable in certain cases where their conduct falls below reasonable standards.

Background

The parties separated and a support order was filed with the Family Responsibility Office. The husband/payor, who was believed to be living in Iraq, became nonresponsive when it came to dealing with FRO.

It is important to note that Iraq is a jurisdiction that has no reciprocal agreement with Ontario; nor is Iraq a signatory to the Hague Convention to return abducted children to their habitual residence in the event of parental abduction.

At some point, the husband travelled to Ontario where he visited the FRO office and subsequently through the federal government and FRO, his Canadian passport was suspended under the Family Orders and Agreement Enforcement Assistance Act.

Sometime after that the husband re-appears at FRO and told FRO that a variation proceeding was commenced and somehow convinces the FRO to authorize the Federal government to remove the suspension of his passport. Quickly thereafter the husband left Canada indefinitely.

The mother brought an application to seek damages from FRO for:

  • Breach of duty;
  • Negligence;
  • Gross negligence;
  • Breach of fiduciary duty; and/or
  • Vicarious liability.

The defendants brought a motion for summary judgement however that motion failed and as such this matter will be proceeding to trial. The mother claimed that she suffered damages as a result of FRO actions and that the foregoing circumstances gave her the right to sue. The judge reviewed an extensive amount of case law regarding whether or not a private citizen can pursue an action in negligence against a public body.

This case is one to follow because there is evidence to prove that FRO was negligent by releasing the passport back to the father. It is also important to note that this may give way to an increase of actions where payees may have previously thought they had no course of action when their spouse disappeared.

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