Ontario Court of Justice
COURT FILE NO. FO-13-00060370-E000
B E T W E E N:
THE DIRECTOR OF THE FAMILY RESPONSIBILITY OFFICE FOR THE BENEFIT OF JILL MARIE LEGER
EMILY LEROUX, for the APPLICANT
APPLICANT
- and –
RICKEY NORMAN LEGER
ACTING IN PERSON
RESPONDENT
HEARD: JUNE 13, 2025
JUSTICE D. SZANDTNER
REASONS FOR DECISION
Part One – Introduction
1The default hearing in this matter was heard on June 13, 2025.
2The applicant (the Director) seeks to enforce the support arrears that have accumulated under the order of Justice T. Yokich in Michigan State, United States dated July 12, 2011. The support order was registered with the Superior Court of Justice Family Branch on March 21, 2012 under the Interjurisdictional Support Orders Act 2002.
3The Director filed a Statement of Arrears dated May 12, 2025 which reflects arrears owing of $65,159.26 as of December 8, 2023. No ongoing child support is payable.
4The Director seeks a default order against the respondent (the payor) on the following terms:
a) The payor shall be required to pay $1,000.00 per month.
b) The payor shall be committed to jail for 3 days for each default.
c) The repayment plan is for five years.
5The payor submitted he cannot afford to pay $1000.00 per month. He asked the court to make an order that he pay ongoing child support of $120.00 per month. He opposed any committal term being attached to the default order.
6The payor gave oral evidence and was cross-examined at the hearing. He submitted medical evidence, a letter from his adult daughter, his Ontario Disability Support (ODSP) application and tax documentation.
Part Two – Background facts
7On July 12, 2011, Justice T. Yokich made the child support order in the State of Michigan, in the United States. The payor failed to appear. The order provided that the parties’ two children (born 1992 and 1994) were placed in the custody of their mother.
8The payor did not appeal that order. He has never moved to change it or set it aside.
9The support order was registered with the Superior Court of Justice Family Branch on March 21, 2012 under the Interjurisdictional Support Orders Act 2002. The court order provided for the following monthly child support payments:
a) $790.00 per month for two minor children;
b) $515.07 per month for one minor child;
c) $92.15 per month for a health insurance premium;
d) $11.64 per month for health care costs for one minor child.
10The payor made sporadic support payments ranging from $195.00 to $905.00 prior to 2020. From 2020 to 2023, the payor made monthly payments of approximately $20.00 per month.
11The Director issued its Notice of Default hearing on December 18, 2023. At the time, the payor was $65,159.26 in arrears of child support. There were no ongoing child support payments owing.
12The payor did not file a Default Dispute.
13On February 20, 2024, at first appearance court, on consent, a temporary default order was made. The payor agreed to provide specified disclosure and to commence a motion to change and provide a copy to the Director’s office before the return date of May 7, 2024.
14On May 7, 2024, on consent, a second temporary default order was made. The payor agreed to provide specified financial disclosure and to commence a motion to change and provide it to the Director’s office before the return date of July 31, 2024.
15On July 31, 2024, the payor appeared in court. On consent, a third temporary default order was made. The payor agreed to an adjournment to October 17, 2024 in person, to monitor the payors Hague Variation Application. The payor was to provide any disclosure he intends to rely on by the return date.
16The next court appearance was on November 20, 2024. The payor appeared in court. The court set the return date for a default hearing. The payor was to provide to the Director financial and medical disclosure by February 5, 2025.
17On February 19, 2025, the payor appeared in court. On that date, he agreed to provide the financial and medical disclosure set out in Schedule A of a filed consent.
18On March 19, 2025, the payor appeared in court. On that date, the hearing was adjourned to permit the payor to bring his motion to change. The return date of May 12, 2025 was peremptory.
19On May 12, 2025, the payor appeared in court. He reported that he did not intend to bring a motion to change. The default hearing was scheduled for June 13, 2025.
20The Director filed its updated Statement of Arrears at the hearing. Its contents were not disputed by the payor. The payor’s arrears are $65,159.26 as of December 8, 2023. There is no ongoing child support payable.
Part Three – The payor’s evidence
21The payor filed a financial statement sworn February 4, 2025 which reports the following:
a) Annual income of $28,800.00;
b) Annual expenses of $12,202.00;
c) Annual debt payments of $800.00;
d) Sole asset is a 2009 vehicle valued at $1,500.00;
e) Outstanding debts totalling $100,106.00 (including the FRO arrears).
22The payor filed his income tax summaries for 2021, 2022 and 2023. They report the following annual income:
a) 2021 – $18,600.00
b) 2022 – $15,244.00
c) 2023 – $12,560.00
23The payor also filed evidence of his debts. He filed the following:
a) A Notice of Collection dated February 1, 2025 for the Canada Revenue Agency (CRA) for the amount due of $4,289.17;
b) A Collection notice dated January 18, 2024 for Capital One Bank for the amount due of $7,980.46;
c) A Collection Notice dated January 10, 2024 for CIBC for the amount due of $6,852.07;
d) A BMO Cashback Mastercard statement dated February 3, 2024 showing an amount owing of $4,549.95.
24The payor filed medical evidence as follows:
a) A letter from Dr. Karim Taha, cardiologist, dated November 21, 2024 reporting that Mr. Leger has been suffering from chronic coronary disease and compounding respiratory failure for the past two years. He reports: “Though he has had several procedures and is on maximal tolerated therapy, he remains debilitated by his symptoms secondary to these conditions and he is not able to perform his employment duties. He is not able to physically exert himself to the capacity necessary to do his job. His condition has been worsening over the past year which has further limited his capacity to perform his duties.”
b) A letter from Dr. Vinay Garg, cardiologist, dated February 6, 2024 reporting that Mr. Leger has known coronary artery disease with cardiac intervention less than a year ago. He reports: “He has ongoing shortness of breath which is potentially cardiac or respiratory related that is still under ongoing investigation. He is not currently able to meet the demands of his employment given that he gets short of breath with relatively limited exertion compared to what is required from his current job.”
c) A message from Dr. Alex Xu dated October 16, 2024 reporting that Mr. Leger’s x-ray shows some evidence of degenerative disc disease in his neck. This represents wear and tear of the vertebrae in the neck.
d) A diagnosis dated October 31, 2024 from Dr. A. Panchal of cervical radiculopathy.
25The payor also listed the medications he is currently prescribed which include the following: Tylenol with codeine, Perindopril, Bisoprolol, amlodipine, atorvastatin, nitroglycerin, Xanax and clopidogrel. He reports a variety of incapacitating side effects as a result of this medication regime.
26The payor filed his Ontario Disability Support Program (ODSP) application which was submitted on February 20, 2025.
27The payor filed an email from one of his now adult children date October 16, 2024. She reports that her mother (the recipient) and the maternal extended family are multi-millionaires. She reports that she and her sister attended college with their full support and were gifted new cars. She was recently gifted $400,000.00 USD through a trust to pay for a new house in Florida. She asks that the enforcement of the arrears be terminated so that the payor may have the resources to visit and meet his grandchildren.
28The payor testified that he is a drain technician. His current health conditions affect his capacity to do his job. He struggles to carry the heavy equipment up flights of stairs. He can still do small jobs involving lighter equipment. He is currently earning approximately $2,400.00 per month doing this work, but it fluctuates.
29He has applied for ODSP due to his worsening health status.
30He has also considered moving to a less expensive area to live. He has reached out to Home Depot in different areas and has also applied to home inspector positions.
31He has been living off credit cards and relying on the support of family as his health has deteriorated.
Part Four – Legal considerations
32The current statutory scheme governing default hearings is found in section 41 of the Family Responsibility and Support Arrears Enforcement Act (the Act) and rule 30 of the Family Law Rules. The Director may initiate the default proceeding. 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. See: Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825, paragraph 17.
33At the hearing, the amount of arrears owed and the payor's ability to pay are the central issues. Subsection 41 (9) of the Act 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 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.
34Subsection 41 (10) of the Act sets out the powers of the court on a default hearing as follows:
Powers of court
(10) 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,
(a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears;
(b) discharge the arrears in full by a specified date;
(c) comply with the order to the extent of the payor’s ability to pay;
(d) make a motion to change the support order;
(e) provide security in such form as the court directs for the arrears and subsequent payment;
(f) report periodically to the court, the Director or a person specified in the order;
(g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur;
(h) 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 arrears are paid, whichever is sooner; and
(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.
35Subsection 41 (11) of the Act states:
No effect on accruing of arrears or other means of enforcement
(11) An order under subsection (10) does not affect the accruing of arrears, nor does it limit or otherwise affect any other means of enforcing the support order.
36Subsection 41 (17) of the Act reads:
Imprisonment does not discharge arrears
(17) Imprisonment of a payor under clause (10) (h) or (i) does not discharge arrears under an order.
37At a default hearing, the payor must show an inability to pay due to valid reasons. A valid reason is an event over which the payor has no control which renders the payor totally without assets or income with which to meet his or her obligations, such as disabling illness or involuntary unemployment. See: Ontario (Director, Family Responsibility Office) v. Carney 2004 ONCJ 11.
38The payor must also show at a default hearing that they have accepted their responsibilities and placed the child’s interests over their own and has provided frank disclosure to the court. See: Ontario: (Director, Family Responsibility Office) v. Labrash, 2002 CanLII 62578 (ON CJ), 2002 CarswellOnt 90 (OCJ).
39The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations. See: Smith v. Pellegrini, 2008 CanLII 46927 (ON SC), [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, 2009 CanLII 25981 (ON SC), [2009] O.J. No. 2140, (Ont. S.C.); Isaya v. Ozo, 2022 ONCJ 321. The party must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. See: Charron v. Carriere, 2016 ONSC 4719; Ontario (Director, Family Responsibility Office) v. Ramgopaul, 2024 ONCJ 562.
40In Ontario (Director, Family Responsibility Office) v. De Francesco, O.J. [2012] 6338, Justice Carolyn Jones further explores the meaning of “valid reason” under subsection 41 (10) as follows at paragraph 21 of her decision:
21 Valid reasons, within the meaning of s. 41(10) of the Act, imply reasons for which the payor cannot be faulted or for which the payor does not bear responsibility in the culpable sense. The court would expect some evidence of circumstances where, despite reasonable, diligent and legitimate efforts by the support payor to comply with the support order, the support payor has been unable to do so for reasons that are not connected with an unwillingness to pay, a lack of effort, a failure to prioritize the support obligation or a deliberate neglect, failure or avoidance on the part of the payor. Evidence relating to the past and present circumstances of the payor, including his financial circumstances since the time of the first default under the order, the manner in which he has applied his available income and assets, and his efforts to secure employment or income during the time that the arrears have arisen will have some bearing upon the determination of the legitimacy of the reasons the payor puts forward for his default under the support order. Circumstances that are beyond the control of the payor, resulting in the payor's inability to pay, would be valid reasons. An illness on the part of the payor, including a mental disorder, rendering the payor completely unable to work on either a full or part-time basis, as in the case before the court, would amount to a valid reason for the payor's failure to pay.”
41The court is not required to incorporate the payment terms of the existing support order in its default order. See: DeFrancesco, supra, par. 22.
42Inability to pay is not the same as difficulty paying. See: Aitken v. Aitken, 1992 CanLII 7171 (ON CTPD), [1992] W.D.F.L. 1206 (Ont. Prov. Ct.); Ontario (Director, Family Responsibility Office) v. Ramsay, supra.
43Clause 41 (10) (i) of the Act 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: See: Saunders v. Saunders, 1987 CanLII 8295 (ON HCJ), [1987] O.J. No. 1578, 10 R.F.L. (3d) 284 (Dist. Ct.), at para. 11; Fischer, supra.
44Enforcement legislation should be viewed as remedial rather than punitive. See: Saunders, supra.
45Imprisonment is a last resort. Something more than non-payment is required. The payor’s conduct must demonstrate a willful and deliberate disregard for the obligation to comply with court orders. It is meant as a mechanism to enforce support and not as a means of punishing the payor. See: Fischer, supra.
46In Fischer, supra, the court writes at paragraph 25:
Further, the case law and the Act 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…
47The maximum jail time should be reserved for the most severe cases. See: Ontario (Director, Family Responsibility Office) v. Kirkpatrick (2008) 2008 CanLII 49331 (ON SC), 60 R.F.L. (6th) 435 (SCJ); Ontario (Director, Family Responsibility Office) v. Ramsay, supra.
48In FRO v. Hennessy, 2022 ONSC 2594, the court set out the following non-exhaustive set of factors (the Hennessy factors) to consider before ordering imprisonment:
Pattern of accumulated arrears: it is the pattern of the payor’s non-payment that should be more compelling than the total amount of support arrears owing. At first look, larger sums of support arrears might appear to reflect more blameworthy conduct. However, one must bear in mind that support arrears are relative to the monthly support award: sustained periods of non-payment, whether $100 per month, or $10,000.00 per month can be equally devastating to the recipient. As such, the period of non-compliance is likely more probative to the nature of the payor’s non-compliance than the total quantum owing.
Voluntary v. involuntary payments: In reviewing the Director’s Statement of Arrears filed, the court may consider whether the payor’s historic contributions towards the support obligation were made by way of direct payment from the support payor, or by involuntary diversions. Such information might be relevant to whether the payor was making efforts to comply with the terms of the operative support order or playing a game of ‘catch me if you can’.
Income source disclosure: Similarly, the court might consider the payor’s history of income disclosure. In some cases, the payor will diligently and voluntarily disclose income sources to the Director or the Recipient, facilitating the prompt garnishment of income streams. In other cases, the payor will not disclose changes in employment, leaving the recipient and FRO caseworker to attempt to chase and locate income sources.
Previous findings: It is not inappropriate to review the historic court record, and in particular, any previous court endorsements which speak to the payor’s willingness or unwillingness to accept their obligation to support recipients. For example, if income was imputed to a payor due to a finding of intentional unemployment or underemployment, or because the payor failed to produce the financial disclosure as required, the court may be more likely to find that any non-payment of support was wilful and deliberate in nature rather than as a result of unfortunate circumstance. Likewise, where a default hearing continues after an operative support order has been changed (i.e. under s. 41(22) of the FRSAEA), the court may consider whether any of the periods of non-payment of support were mitigated, excused or forgiven for legitimate reason in the subsequent order.
Timeliness of actions of payor: It is not uncommon that a payor does not take steps to commence a Motion to Change proceeding until they have been brought before the court on default notice. However, once the payor indicates that they intend to seek changes to the operative support order, the court may consider whether the payor took bona fide steps to comply with court procedure and seek change on the merits, or whether the payor was simply engaging in further tactics to delay payment to the recipient.
Other evidence of prioritization of self over support: In some cases, there may be lifestyle or other financial information before the court which causes the court concern that the payor has prioritized other expenditures over compliance with the support order. It is not inappropriate to consider information relating to the payor’s assets or expenditures, if available, in assessing whether their non-payment is wilful and deliberate.
49In Director, Family Responsibility Office v. Masoud, 2021 ONCJ 265, this court wrote that the court must also consider the interests of the children and the support recipient who are not before the court, and the consequences to them of the payor’s failure to meet his support obligations. The court wrote at paragraphs 71 and 72:
71In Michel v. Graydon, 2020 SCC 24, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.
72It is imperative that courts not contribute to that hardship and to the feminization of poverty by failing to enforce valid and subsisting court orders when a payor does not establish a valid inability to pay and fails to provide adequate financial disclosure – as is the case here.
Part Five – Analysis
50The payor was self-represented at the default hearing. He filed both financial and medical evidence.
51The court finds that the payor has rebutted the presumption that he has the ability to pay the entire amount of arrears owing immediately and that he is able to make significant ongoing support payments.
52The payor rents an apartment. He has no assets other than an old vehicle. He has significant debt that is now with collection agencies. He works at a job as a drain technician that requires physical strength and capacity. He has suffered a recent significant deterioration in his physical health. Two cardiologists have directly cautioned him against returning to his physical employment.
53The payor was a credible witness. The court accepts his evidence about his income and his ability to earn income. The court makes this finding for the following reasons:
a) The payor’s medical disclosure reflects significant debilitating health conditions that affect his current ability to continue to work as a drain technician;
b) The payor’s financial disclosure reflects a significant debt burden to a range of creditors. This debt is in the hands of collection agencies.
54The payor filed evidence from one of his adult children that states that she and her sibling were financially supported at a very high level from the recipient’s extended family. Her email reports that she and her sister were supported through college and she had financial assistance from family for her first home purchase. She asks the court to forgive the amount owing so that the payor can afford to visit her and his grandchildren in Florida.
55The court also finds the following facts:
a) The payor has delayed this proceeding. It has been adjourned several times for him to bring a motion to change the support order. He never followed through.
b) The payor has not acted in good faith and has not come to court with clean hands. He paid support sporadically over the course of the support order. He has paid very little from 2020 to 2023.
Part Six – The default order
56This leaves the court to determine what default order is appropriate in these circumstances.
57It is one of the court’s primary objectives in a default hearing to maximize the enforcement of an order.
58The court also has to consider imprisonment as the last resort for enforcement. In making a default order with a term of imprisonment attached, the court should be confident that the payor has the ability to make the payments ordered. The consequences to the payor if the court orders an amount he cannot afford are profound.
59Reconciliation of the objective to maximize the enforcement of an order while not unjustly imprisoning a payor for non-payment of a default order is a delicate balancing act for the court. This court prefers to err on the side of caution in balancing these considerations. See: Ontario (Family Responsibility Office) v. Levy, 2016 ONCJ 474.
60The court finds that the payor in this case has valid health reasons for being unable to make significant monthly payments towards the arrears. His current health status directly impacts his capacity to work full time as drain technician.
61The $1,000.00 monthly payment and committal term sought by the Director would compel the payor to disregard clear medical advice and work beyond his current physical capacity in order to avoid incarceration.
62The payor shall be required to pay ongoing child support payments of $120.00 each month starting on September 1, 2025. He shall be committed to jail for three days for each payment in default, or until such earlier time as they are paid.
Part Seven – Conclusion
63There shall be a final default order on the following terms:
a) Child support arrears are fixed in the sum of $65,159.26 as of May 12, 2025.
b) The payor shall pay the child support payments of $120.00 each month, starting on September 1, 2025. He shall be committed to jail for three days, or until such earlier time as the outstanding amounts are paid in full, for each payment in default.
c) The maximum length of time, cumulatively, the payor can be imprisoned under this default order is 30 days.
d) Nothing in this order precludes the Director from collecting arrears from any other source, including income tax or HST/GST refunds, inheritances and lottery or prize winnings.
e) The payor shall provide the Director with copies of his full income tax returns, including all attachments and schedules, and his notices of assessment by June 30th each year.
f) The Director may serve the payor with any motion for committal by both ordinary mail and email addressed to him at his last known addresses in its records, if he is served within six months. After six months, any motion must be served by special service.
Released: July 21, 2025
Justice D. Szandtner