Adubofuor v. Director, Family Responsibility Office for the benefit of Janice Adubofuor

[Indexed as: Adubofuor v. Ontario (Director, Family Responsibility Office)]

53 O.R. (3d) 171

[2001] O.J. No. 708

Docket No. C34030

Court of Appeal for Ontario

Weiler, Laskin and Charron JJ.A.

March 5, 2001

Family law--Support--Enforcement--First Notice under Family Responsibility and Support Arrears Enforcement Act of intention to suspend defaulting payor's driver's licence sent to address shown in Director's records--Defaulting payor claimed not to have received First Notice--Defaulting payor received notice of licence suspension sent to same address--Defaulting payor brought motion to reinstate his licence--Director filed affidavit of service showing that payor was served in accordance with s. 17.1 of Regulation 359/97 under Act--Payor cannot avoid suspension of driver's licence by bare assertion that he did not receive notice where he was served in accordance with Act and Regulations--Licence properly suspended --Motions judge erred in ordering reinstatement of payor's licence as payor had not met requirements of s. 38(1) of Act --Motions judge had no jurisdiction to make order refraining Director from suspending payor's licence as refraining order may only be made within 30-day period referred to in First Notice--Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s. 38(1)--Regulation 359/97, s. 17.1.

The applicant was in default under a child support order. He was sent a First Notice of the Director's intention to suspend his driver's licence under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31. The notice was sent to the address shown in the Director's records, but the applicant denied receiving it. His licence was suspended. He did receive notification of the suspension, which was sent to the same address. He brought a motion to reinstate his licence. On the motion, the Director filed an affidavit of service showing that the applicant was served with the First Notice in accordance with s. 17.1 of Regulation 359/97 under the Act. The motions judge ordered the reinstatement of the applicant's licence for 90 days to permit him to bring a motion to vary the child support order and ordered the Director to refrain from suspending the applicant's licence during that 90- day period. The Director appealed.

Held, the appeal should be allowed.

Because the applicant was served with the First Notice in accordance with the Act and the regulation, he could not avoid the suspension of his driver's licence by the bare assertion that he did not receive the notice. Cogent evidence would be required to rebut service that complied with the legislative regime. Therefore, his licence remained suspended. To reinstate his licence, he had to meet the requirements of s. 38(1) of the Act. He had not done so.

The motions judge did not have jurisdiction to make the refraining order. Under s. 35(3) of the Act, a refraining order may only be made within the 30-day period referred to in the First Notice. The motions judge's order was made well beyond the 30-day period.

APPEAL by the Director from an order lifting a suspension of the applicant's driver's licence and ordering the Family Responsibility Office to refrain from directing a suspension of the applicant's driver's licence.

McLarty v. Ontario (Director, Family Responsibility Office) (2001), 53 O.R. (3d) 161 (C.A.), distd Statutes referred to Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s. 35(3), 38(1) Rules and regulations referred to O. Reg. 359/97, s. 17.1 (Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31)

No one appearing for respondent. Melanie Herbin, for appellant.

The judgment of the court was delivered by

LASKIN J.A.:--

Introduction

1This appeal raises issues similar to those in McLarty v. Director Ontario (Family Responsibility Office) (2001), 53 O.R. (3d) 161, (C.A.). The reasons in the two appeals are being released at the same time.

2The respondent in this case, Joseph Adubofuor, has not complied with a child support order and has claimed that he did not receive the First Notice of the Director's intention to suspend his driver's licence. As in McLarty, his licence was subsequently suspended. He then brought a motion to reinstate his licence. The motion was brought nearly eight months after the 30-day period referred to in the First Notice had expired. However, unlike in McLarty, on the motion in this case the Family Responsibility Office ("FRO") proved proper service of the First Notice. Nonetheless, Dunbar J. ordered that the Director instruct the Registrar of Motor Vehicles to reinstate Mr. Adubofuor's driver's licence for 90 days to allow him to bring a motion to vary his child support payments.

3For the brief reasons that follow, I would allow the appeal and set aside the order of the motions judge. In my view, she had no jurisdiction to order the licence reinstated.

Discussion

4On May 20, 1987, Mr. Adubofuor was ordered to pay Janice Adubofuor $100 per month for each of his two children. The order was filed with the FRO on December 16, 1987. From the time the order was filed, Mr. Adubofuor has been in default. By June 1999, arrears amounted to $27,922.60.

5On June 9, 1999 the Director sent a First Notice to Mr. Adubofuor by ordinary mail addressed to him at 23 Driftwood Court, Unit #6, North York, Ontario, the address shown in the Director's records. The notice gave Mr. Adubofuor until July 15, 1999 to take action. He did not respond to the notice and his driver's licence was suspended on January 24, 2000.

6Mr. Adubofuor was notified of the suspension by letter also sent to his Driftwood Court address. The notice of suspension also showed his address in the records of the Ministry of Transportation as 23 Driftwood Court, Unit #6, North York.

7Mr. Adubofuor received the notice of the suspension of his licence, retained a lawyer and brought a motion to reinstate his licence. His notice of motion listed the same home address, 23 Driftwood Court, Unit #6, North York. Yet in his supporting affidavit, he claimed not to have received the First Notice. He also claimed that he was a full-time student, that he had no taxable income since 1995 and that he intended to seek a refraining order and a variation of the child support order. On the motion, the Director filed an affidavit of service attesting that on June 9, 1999 the First Notice had been sent to Mr. Adubofuor by pre-paid ordinary mail at 23 Driftwood Court, Unit #6, North York.

8The motions judge granted the relief Mr. Adubofuor sought. She ordered the Director to instruct the Registrar of Motor Vehicles to reinstate Mr. Adubofuor's driver's licence for 90 days to permit him to bring a motion to vary. If the motion to vary was not completed within the 90-day period, Mr. Adubofuor could apply for a 30-day extension. If the motion to vary was still not dealt with, Mr. Adubofuor's driver's licence would be suspended. The motions judge gave brief reasons for her decision. She noted Mr. Adubofuor's claim that he did not receive the First Notice. And she fairly observed that "the suspension of a driver's licence is a serious matter for many people". She held that:

The legislated provision cannot be so far reaching that it applies whether or not it was received by the payor. In some parts of the legislation, jail time can result. Natural justice demands that parties be aware of their jeopardy before a penalty should be imposed.

9Although I understand the motions judge's concerns, the evidence before her and the provisions of the provincial statute, the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 stand in the way of her order. That order did two things. First, it required the Director to reinstate Mr. Adubofuor's driver's licence. Second, it provided that the licence be reinstated for at least 90 days. In so providing, her order implicitly required the Director to refrain from suspending Mr. Adubofuor's licence during that 90-day period. However, the motions judge had no jurisdiction to order reinstatement or to make a refraining order.

10Reinstatement is provided for in s. 38(1) of the Act:

38(1) Direction to reinstate -- The Director shall direct the Registrar of Motor Vehicles to reinstate a driver's licence suspended as a result of a direction under section 37 if,

(a) the payor pays all the arrears owing under the support order;

(b) the payor is complying with the terms of the arrangement made with the Director in response to the first notice;

(c) the payor is complying with the terms of the support order as well as the terms of any order under section 35 or 41 that relates to the support order;

(d) the payor makes an arrangement satisfactory to the Director for complying with the support order; or

(e) the support order is withdrawn under section 16.

None of the conditions for reinstatement has been met in this case.

11Under s. 35(3) a refraining order may only be made within the 30-day period referred to in the First Notice. The motions judge's order was made well beyond the 30-day period. As this panel said in McLarty, a court has no jurisdiction to extend the 30-day period. In McLarty, this panel also said that the Director's authority to suspend a person's driver's licence for not paying support depended on following the procedural steps in the statute, including properly serving the First Notice. When service is disputed, the Director must prove service. If the Director fails to do so, the suspension cannot stand. That is why Mr. McLarty's driver's licence was ordered to be reinstated.

12In this case, however, the Director did prove service. The material before the motions judge shows that from the time of the First Notice Mr. Adubofuor lived at the same address, 23 Driftwood Court, Unit #6, North York. That was also his address in the records of the Registrar of Motor Vehicles. The affidavit of service shows that he was served in accordance with s. 17.1 of regulation 359/97 under the provincial Act. This regulation provides:

17.1 Service of a notice under Part V of the Act on a payor must be made by ordinary mail,

(a) addressed to the payor at his or her most recent address as shown in the records in the Director's office; and

(b) addressed to the payor at his or her most recent address as shown in the records of the Registrar of Motor Vehicles, if this address is different than the address described in clause (a).

13The FRO should also have filed an affidavit attesting to Mr. Adubofuor's most recent address in the records of the Director and of the Registrar of Motor Vehicles. However, the evidence before the motions judge shows that his most recent address was the address to which the First Notice was sent. Because Mr. Adubofuor was served with the First Notice in accordance with the Act and the regulation, he cannot avoid the suspension of his driver's licence by the bare assertion that he did not receive the notice. Cogent evidence would be required to rebut service that complied with the legislative regime.

14Therefore, Mr. Adubofuor's licence remains suspended. To reinstate his licence, Mr. Adubofuor must meet one of the provisions of s. 38(1) of the statute. As yet, he has not done so.

Conclusion

15Accordingly, I would allow the appeal, set aside the order of the motions judge and dismiss Mr. Adubofuor's motion for reinstatement. I would make no order for costs.