Fischer v. Director, Family Responsibility Office for the Benefit of Deborah Normore

[Indexed as: Fischer v. Ontario (Family Responsibility Office)]

92 O.R. (3d) 721

Court of Appeal for Ontario,

Doherty, Cronk and Juriansz JJ.A.

December 5, 2008

Family law -- Support -- Enforcement -- Default -- Court having power when adjourning default hearing to make temporary order for support payments that includes term directing imprisonment of payor upon failure to comply with payment terms -- Power should be exercised cautiously and only after payor is made aware of nature and effect of proposed committal order and is given fair opportunity to speak to appropriateness of imposition of committal order -- Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, ss. 41(10), 41(14).

The motion judge adjourned a default hearing under the Family Responsibility and Support Arrears Enforcement Act, 1996 and made a temporary order requiring the respondent to make support payments pending the return of the default motion. She also ordered the respondent to be imprisoned for seven days on each and every default. The respondent, who was unrepresented at the hearing, was not asked to make submissions on the committal term. His appeal from the temporary default order was allowed and the committal provision was struck. The Director appealed. When the appeal was heard, the Director conceded that it should be dismissed but asked the court to confirm the existence of the power to make an order directing imprisonment upon default in payment under the terms of a temporary order made pursuant to s. 41(14) of the Act.

Held, the appeal should be dismissed.

Section 41(14) of the Act, which describes the court's power to make temporary orders, states that a temporary order "includes any order that may be made under subsection (10)". The orders available under s. 41(10) include an order under s. 41(10)(i) directing the imprisonment of the payor upon failure to comply with the payment terms of a default order. On a plain reading of s. 41(14) and 41(10), a court has the power when adjourning a default hearing to make a temporary order for support payments that includes a term directing the imprisonment of the payor upon failure to comply with the payment terms. However, that power should be exercised cautiously. Moreover, before making a committal order, the court must be satisfied that the payor is aware of the nature and effect of the proposed committal order and is given a fair opportunity to speak to the appropriateness of the imposition of a committal order in the circumstances.

APPEAL from the order of Kent J., [2008] O.J. No. 1425, 2008 15901 (S.C.J.) allowing an appeal from a temporary default order.

Cases referred to Morrison v. Allen (1988), 1987 4352 (ON SC), 62 O.R. (2d) 790, [1988] O.J. No. 30, 27 O.A.C. 161, 67 C.B.R. (N.S.) 35, 11 R.F.L. (3d) 225, 8 A.C.W.S. (3d) 173 (Div. Ct.), varg (1986), 1986 2441 (ON SC), 56 O.R. (2d) 671, [1986] O.J. No. 2040, 66 C.B.R. (N.S.) 317, 4 R.F.L. (3d) 113, 1 A.C.W.S. (3d) 384 (Dist. Ct.); Ontario (Director of Family Responsibility Office) v. Belic, 2006 22811 (ON SC), [2006] O.J. No. 2730, 143 C.R.R. (2d) 343, 30 R.F.L. (6th) 127, 149 A.C.W.S. (3d) 850, 70 W.C.B. (2d) 296 (S.C.J.); Ricafort v. Ricafort, [2006] O.J. No. 5332, 2006 ONCJ 520, 35 R.F.L. (6th) 210; Saunders v. Saunders, 1987 8295 (ON SC), [1987] O.J. No. 1578, 10 R.F.L. (3d) 284, 6 A.C.W.S. (3d) 355 (Dist. Ct.) [page722] Statutes referred to Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s. 41 Support and Custody Orders Enforcement Act, S.O. 1985, c. 6, s. 11 Rules and regulations referred to Family Law Rules, O. Reg. 114/99, Rule 30

Mark Alchuk, for appellant. Michael J. Marra, for respondent.

BY THE COURT: --

I. Overview

[1] This is a somewhat unusual appeal. The issues between the appellant and respondent are no longer contentious. The appellant (the "Director") all but concedes that the appeal should be dismissed and the order of Kent J. affirmed [[2007 ABQB 578, [2008] O.J. No. 1425, 54 R.F.L. (6th) 267 (S.C.J.)]. However, the Director submits that there is uncertainty regarding the power to make an order directing imprisonment upon default in payment under the terms of a temporary order made pursuant to s. 41(14) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 ("FRSAEA"). The Director asks this court to confirm the existence of the power to make that order where circumstances warrant. Additionally, the Director submits that, assuming the power to make the order exists, this court should identify the steps judges should take to ensure that the proposed subject of the committal order is treated fairly when the order is made.

[2] The respondent agrees that, although the issues between the Director and the respondent are no longer contentious, this court should address the two issues identified by the Director. The respondent makes the point that default proceedings are very common, and often occur in high volume courts in which the defaulting payor is unrepresented, except perhaps by duty counsel. Further, the respondent observes that temporary default orders, by their nature, expire relatively quickly and are not readily susceptible to appellate review. The respondent submits that committal orders which carry with them the risk of imprisonment are becoming common features of temporary orders [page723] made when default proceedings are adjourned. The respondent joins the Director in submitting that the family law bench and bar would benefit from a pronouncement by this court as to the existence of the statutory power in issue. The respondent also submits that this court should address the procedural protections needed to ensure that a person whose liberty may be compromised by a committal order is treated fairly when that order is made.

[3] We would dismiss the appeal. We will address the two issues identified above.

II. The Facts

[4] It is no longer necessary to address whether the appellate court erred by striking the committal term from the temporary default order. The respondent's present support obligations are set out in an order of Gordon J. of the Superior Court of Justice dated May 15, 2008. That order postdates the order under appeal and its terms are not in issue in this appeal. Further, the Director does not support the imposition in January 2008 of the committal term in the temporary default order under appeal. However, the facts surrounding the efforts to enforce the support orders made against the respondent provide a useful context within which to address the two issues raised by the Director.

[5] Various child and spousal support orders were made against the respondent between September 2002 and September 2005. As of September 2005, the respondent was required to make support payments totalling $1,880 per month. The support orders were filed with the Director's office for enforcement. The payments were current in June 2006.

[6] By February 8, 2007, the respondent was in arrears on the payments owed under the support orders. The Director commenced a default hearing proceeding pursuant to s. 41 of the FRSAEA. The notice of hearing, personally served on the respondent, as required by the rules, informed him that: -- a default hearing would occur on April 2, 2007; -- he owed $5,196.61 on the support orders; and -- at the default hearing, the court could make an order against him, "including an order for your imprisonment for up to 180 days".

[7] The respondent appeared unrepresented on April 2, 2007. He was granted an adjournment to June 4, 2007 to allow him to pursue a motion to vary the terms of his spousal support order. [page724]

[8] On June 4, 2007, the default hearing was adjourned to August 13, 2007, pending resolution of the respondent's motion to vary the terms of his spousal support order, scheduled to be heard in July 2007.

[9] On August 13, 2007, the default hearing was adjourned, for a third time, to January 7, 2008, pending resolution of the motion to vary the support order which was still outstanding.

[10] The respondent's motion to vary the support order was heard on November 29, 2007. The respondent was represented by counsel in this proceeding. Certain variations in the support order were made. The respondent's support obligations were increased slightly to $1,955 a month. [^1] In making the variation order, the judge noted that the respondent was in arrears on both child and spousal support, and that "his 50% wage deduction does not meet the ongoing support obligations".

[11] On January 7, 2008, the default hearing came before the court for the fourth time. The respondent was unrepresented. Counsel for the Director advised the court of the terms of the variation order made in November 2007. Section 41(22) authorizes the incorporation of the terms of the variation order into any order made pursuant to s. 41(10) at the default hearing.

[12] Counsel for the Director advised the court that the respondent was now represented by counsel in the default proceedings, but that counsel was unavailable on that day. The motion judge agreed to adjourn the default hearing to March 17, 2008 so that counsel for the respondent could attend. She acceded to counsel for the Director's request and made a temporary order requiring the respondent to make the support payments set out in the November 2007 order pending the return of the default motion in March 2008.

[13] The following exchange ensued:

THE COURT: Any default provision on the interim order?

MS. CHAMPSIE: If Your Honour is willing to make it, absolutely.

THE COURT: Yes, I am.

MS. CHAMPSIE: Okay . . . seven days.

THE COURT: Alright. So there will be a temporary default order that Andrew Fischer is to pay the on-going order of child support [page725] and spousal support of $1955.00 per month commencing January 1st, 2008.

In default, Andrew Fischer shall be incarcerated for a period of seven days on each and every default. Anything else? (Emphasis added)

[14] The respondent was present throughout the proceeding on January 7, 2008. He made no submissions on the committal provision, nor was he asked to do so.

[15] The motion judge's order adjourning the default hearing to March 17, 2008 and requiring the respondent to pay support in the amount of $1,955 per month pending the continuation of the default hearing included the term that in default, Andrew Fischer would be incarcerated for a period of seven days on each default.

[16] The respondent appealed the January 7, 2008 temporary default order. He obtained a stay of the committal term on January 17, 2008. On April 9, 2008, Kent J. heard the appeal of the temporary default order. By order dated April 10, 2008, he allowed the appeal and struck the committal provision. In his reasons, he observed [at para. 5]:

The effect of including a committal in the event of default provision in the temporary order creates a real possibility that this appellant could be incarcerated without a default hearing being conducted and without having had the benefit of his counsel being able to make submissions to the presiding judge. Such incarceration would be inappropriate.

III. Analysis

(1) The statutory power to make a temporary order for support that includes a term directing imprisonment upon default in payment

[17] The current statutory scheme governing default hearings is found in s. 41 of the FRSAEA and Rule 30 of the Family Law Rules, O. Reg. 114/99, as amended. The Director may initiate the default proceedings. The Director prepares a statement of arrears. The payor files a financial statement and, if so inclined, a default dispute. The court may hear oral testimony, direct the production of other relevant documentation and add parties to the default proceedings: s. 41(1), (4) and (5); rule 30(3).

[18] At the hearing, the amount of arrears owed, and the payor's ability to pay, are the central issues. Section 41(9) puts the onus on the payor, as follows:

Presumptions at hearing

(9) At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent [page726] payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director's office.

[19] The court conducting a default hearing may adjourn that hearing, and may make a temporary order pending the ultimate resolution of the default hearing. Section 41(14) describes the court's power to make temporary orders:

Temporary orders

(14) The court may make a temporary order against the payor . . . that includes any order that may be made under subsection (10) . . .

[20] Section 41(10) sets out the panoply of remedial powers available to the court on the disposition of the default hearing. Any one or more of those powers may be exercised by the court "unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order".

[21] The various orders available under s. 41(10) include an order under s. 41(10)(i) directing the imprisonment of the payor upon failure to comply with the payment terms of a default order made under this subsection: (b) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor, . . . . . (i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner.

[22] Section 41(10)(i) contemplates an order of imprisonment for failure to pay an amount owing at the time the order is made or a failure to make future payments required under the order: Saunders v. Saunders, 1987 8295 (ON SC), [1987] O.J. No. 1578, 10 R.F.L. (3d) 284 (Dist. Ct.), at para. 11. [^2]

[23] Counsel for the Director and the respondent agree that on a plain reading of s. 41(14) and 41(10), a court has the power when adjourning a default hearing to make a temporary order for support payments that includes a term directing the imprisonment of the payor upon failure to comply with the [page727] payment terms. We accept this interpretation of the legislation. The statutory language is clear. Nothing in s. 41(14) detracts from the scope of the remedial powers available under s. 41(10). The full range of those remedial powers, including imprisonment upon non-payment, is available to a judge making a temporary order. There is nothing that distinguishes the nature of payment orders made pursuant to a temporary order in a default proceeding from payment orders made as part of a final order in the same proceeding. Resort to committal as a means of enforcement may be necessary in either case. Subject to a constitutional challenge, and none is made in this case, the statute should be given effect according to the plain meaning of its language.

[24] Recognizing that a statute gives the court the power to make a committal order as a term of a temporary order made in a default proceeding does not, of course, speak to the propriety of imposing that term in any given case. The FRSAEA and predecessor legislation dealing with the enforcement of default orders have always regarded imprisonment for non-payment of those orders as the enforcement mechanism of last resort. Something more than non-payment is required. The payor's conduct must demonstrate a wilful and deliberate disregard for the obligation to comply with court orders: see, e.g., Morrison v. Allen (1988), 1987 4352 (ON SC), 62 O.R. (2d) 790, [1988] O.J. No. 30, 11 R.F.L. (3d) 225 (Div. Ct.), at para. 11, affg on this point Allen v. Morrison (1986), 1986 2441 (ON SC), 56 O.R. (2d) 671, [1986] O.J. No. 2040, 4 R.F.L. (3d) 113 (Dist. Ct.); Ricafort v. Ricafort, 2006 ONCJ 520, [2006] O.J. No. 5332, 35 R.F.L. (6th) 210 (C.J.), at para. 49; Ontario (Director of Family Responsibility Office) v. Belic, 2006 22811 (ON SC), [2006] O.J. No. 2730, 30 R.F.L. (6th) 127 (S.C.J.), at para. 29.

[25] Further, the case law and the FRSAEA recognize that imprisonment for non-payment is meant as a means of enforcing the support order and not as a means of punishing the payor. The payor must be released upon payment of the amount owed: see s. 41(10)(i). A committal order, imposed as a term of either a temporary or final order in a default hearing, is intended to induce compliance with the payment terms of the order. The prospect of imprisonment hopefully focuses the payor's mind on the importance of making the required payments. The enforcement rationale for imprisonment upon non-payment makes sense only if the payor has the ability to make the payments required by the order: see Saunders, at paras. 11-13.

[26] The constraints on the use of imprisonment where the payor fails to comply with an order made at the end of a default proceeding have full application to non-compliance with temporary orders [page728] made in those proceedings. At least two additional factors suggest further caution. First, presumably the adjournment of the hearing indicates that the court is satisfied that the full merits of the default hearing should be addressed at a subsequent time. Courts should be hesitant to order the potential imprisonment of the payor absent the full inquiry into the merits of the proceedings. Second, where the matter is adjourned, presumably the payor will be back before the court within a relatively short time. Any failure to comply with the temporary order may well be more appropriately addressed when the default proceeding is back before the court. [^3]

(2) The appropriate procedure where the court proposes to impose a committal order

[27] Counsel advise that the payor is often unrepresented in default hearings. We will assume that the payor is unrepresented in considering the steps that a court should take to ensure that a payor is treated fairly before making a committal order as a term of a temporary order under s. 41(14). Counsel agree that, before making a committal order, the court must be satisfied that the payor is aware of the nature and effect of the proposed committal order and is given a fair opportunity to speak to the appropriateness of the imposition of a committal order in the circumstances.

[28] Counsel for the respondent favours a more formal process involving the taking of evidence under oath and giving the payor an opportunity to call evidence and cross-examine witnesses. Counsel for the Director submits that the level of formality suggested by counsel for the respondent is neither necessary, nor appropriate. He makes the point that temporary orders are made in the context of the adjournment of the default hearing. Counsel for the Director suggests, correctly in our view, that the formalities associated with a full hearing on the merits are not necessary when settling the terms of an adjournment. [page729]

[29] In our view, the courts that conduct default hearings are better positioned than this court to appreciate and address the demands of fairness in any given circumstance. However, a few broad observations may be helpful.

[30] The liberty of a payor who is potentially the subject of a committal order is put in jeopardy if the order is made. At a minimum, fairness in the context of a proposed order that could result in imprisonment requires that: -- the court explain to the payor the nature of the proposed committal order and the effect it could have on the payor's liberty; -- the court explain to the payor why it is considering making the committal order; and -- the payor be given an opportunity to respond to the reasons offered by the court and to advise the court of any additional facts that may be relevant to the court's decision to make the order.

[31] It is best left to the wisdom of individual judges in individual cases to decide exactly how to ensure that the payor is given the necessary information and the opportunity to put his or her position forward. We do, however, accept that the context in which the proposed order is being considered must be borne in mind in deciding what steps are necessary to ensure that the payor is treated fairly. Where the order in issue is a term of an adjournment sought by the payor, it would not be helpful to impose a procedural regime that would effectively result in adjournments to gather further information so that the terms of the adjournment could be settled. The common sense of the courts conducting these hearings will no doubt prevail.

[32] We also think that if the court concludes that a committal order is a proper term of a temporary order, the court should make the adjournment of the default proceedings as short as the circumstances reasonably permit, thereby hopefully reducing the risk of non-compliance.

IV. Disposition

[33] The appeal is dismissed.

[34] If counsel cannot agree on costs, they may make written submissions of no more than five pages. Counsel for the respondent should serve and file his submissions within four [page730] days of the release of these reasons. Counsel for the appellant should serve and file within ten days of receipt of the respondent's submissions.

Appeal dismissed.

[^1]: Subsequent to the order under appeal, the order made on November 29, 2007 was varied by Gorden J. on appeal. That is the order referred to in para. 4 of these reasons.

[^2]: While the order in Saunders was made under s. 11 of the Support and Custody Orders Enforcement Act, S.O. 1985, c. 6, the language of the present legislation compels the same interpretation.

[^3]: Counsel for the respondent advised in the course of oral agreement that where committal orders are made as a term of a temporary order, any failure by the payer to make the requisite payments during the term of the temporary order will be addressed when the default proceedings continue on the adjournment date. This procedure suggests that including a committal term in the temporary order may not result in immediate incarceration upon non-payment, but may result in imprisonment after the final default order is made.