COURT FILE NO. FO-15-0045-E002
ONTARIO COURT OF JUSTICE
B E T W E E N: )
THE DIRECTOR OF THE FAMILY )
RESPONSIBILITY OFFICE ) KEVIN CLEGHORN for the APPLICANT
FOR THE BENEFIT OF MARIANNE )
ELIZABETH DEROUARD )
APPLICANT )
- AND –
ALBERT MAURICE DEROUARD ) ACTING IN PERSON
RESPONDENT )
HEARD: JULY 15, 2026
JUSTICE A. MEDHEKAR
REASONS FOR DECISION
Part One – Introduction
1The default hearing in this matter was heard on July 15, 2026. The applicant, the Director of the Family Responsibility Office (the “Director”), for the benefit of Marianne Elizabeth Derouard (the “Support Recipient”), seeks to enforce support arrears that have accumulated under the order of Fregeau J. of the Ontario Superior Court of Justice dated June 20, 2022 (the “existing order”).
2The Director seeks a default order against the Respondent Albert Maurice Derouard (the payor) on the following terms:
a. Arrears shall be set at $84,721.98 (being $84,321.98 on account of arrears and $400.00 on account of an administration fee) as of July 14, 2026.
b. The payor shall make payments of $4,000.00 per month as per the existing order.
c. The payor shall also pay $1,000.00 per month on account of arrears as found, commencing August 15, 2026, and payable on the 15th day of each month hereafter until the arrears are paid in full.
d. In the event of default of any payment herein, the Director, Family Responsibility Office, shall be at liberty to bring any future motion for a warrant of committal. Notice to the Respondent may be sent via regular mail at the last known address for the Respondent.
e. The payor shall be committed to jail for five days upon each default of the requirements for payments set out in paragraphs 2 and 3 herein, up to a maximum of 180 days or until payment is made, whichever is sooner, with a warrant of committal to issue thereby.
3The payor did not attend the hearing of the default motion. The default hearing proceeded on an uncontested basis. The support recipient attended the hearing virtually and participated in the proceeding.
Part Two – Background
4Marianne Elizabeth Derouard is the support recipient. Albert Maurice Derouard is the payor.
5The parties were previously involved in proceedings before the Ontario Superior Court of Justice under court file FS-12-5162.
6The parties were married on March 27, 1993. On March 31, 2015, Justice Fregeau issued a Divorce Order. The divorce took effect on May 1, 2015. The parties had been married for approximately 22 years.
7Justice Fregeau imputed annual income of $155,000 to the payor and ordered him to pay spousal support of $4,566 per month commencing April 1, 2015 and continuing until further order of the court.
8Justice Fregeau further ordered the payor to pay a lump sum of $15,000 to the recipient in full satisfaction of retroactive spousal support. The payment was due on or before April 10, 2015. The payor was also required to provide annual income tax disclosure by May 31 of each year. An enforcement was directed through the Family Responsibility Office.
9On June 20, 2022, Justice Fregeau heard a motion to change. Both parties were represented by counsel. On consent of both parties, Justice Fregeau made an order varying the spousal support provisions contained in the March 31, 2015 order. The court rescinded paragraph 3 of the 2015 order and ordered the payor to pay spousal support of $4,000 per month, effective January 1, 2022, on the first day of each month until further order of the court.
10Justice Fregeau ordered that all remaining terms of the March 31, 2015 order remain in full force and effect. The court further ordered that support continue to be enforced through the Family Responsibility Office unless withdrawn.
11There was no appeal from either the March 31, 2015 Divorce Order or the June 20, 2022 order made on the motion to change.
Procedural History
12The default hearing proceeding was commenced on August 11, 2025 and finally heard on July 15, 2026. As of the hearing date, the matter was 337 days old (approximately 11 months).
13The procedural history is summarized as follows:
August 18, 2025: The payor was served by special service.
October 15, 2025: The payor did not attend the scheduled court appearance.
October 22, 2025: A bench warrant was issued. The matter was adjourned to December 3, 2025.
December 3, 2025: The payor did not attend. At the request of the Director, the matter was adjourned to permit further efforts to contact the payor.
January 7, 2026: The payor attended. He was granted time to apply for Legal Aid and retain counsel. The deadline for filing responding materials was extended to February 20, 2026.
March 4, 2026: The payor attended and was assisted by duty counsel. He advised that he intended to bring a motion to change, was receiving assistance through Legal Aid Ontario, and agreed to pay $100 per month toward the support arrears.
May 20, 2026: The payor did not attend. The Director submitted that, on that date, the payor sent a without prejudice email indicating that he would not participate further in the default hearing process.
June 3, 2026: The payor did not attend. The Director advised the court that the payor had not maintained contact with the Legal Aid Ontario Family Law Office. According to information provided by Legal Aid Ontario, multiple attempts to contact the payor had gone unanswered. The matter was scheduled for a default hearing on July 15, 2026.
Part Three – The payor’s evidence
14The payor filed a Default Dispute, a Responding Affidavit, and a Financial Statement, all sworn on February 19, 2026. He acknowledged that:
a. the support orders dated March 31, 2015 and June 20, 2022 remain in effect;
b. he owes the amount set out in the Statement of Money Owed;
c. he did not pay support as ordered; and
d. he had not previously sought to vary either order.
15The payor stated that he was unable to pay support because of unemployment and mental health difficulties. He claimed that those circumstances contributed to his failure to pay support.
16The payor described a lengthy employment history in the mining industry in Ontario and Manitoba. He stated that before the divorce proceedings he earned sufficient income to support himself and the recipient. He acknowledged that his income remained generally consistent with the income imputed under the 2015 order for several years following the divorce.
17The payor stated that in the summer of 2022 a close friend and coworker died in a workplace accident. He further stated that he was subsequently involved in a mining incident in northern Manitoba in which he was trapped underground for approximately 18 hours. Later in 2022, he was underground during mine fires at Snow Lake, Manitoba. He stated that these events affected him significantly.
18The payor stated that following these events he experienced depression, anxiety, insomnia, and post-traumatic stress disorder. He stated that the symptoms worsened after he was laid off from employment.
19The payor stated that he obtained employment at a mine in Red Lake in 2023. He continued to experience mental health issues, but he continued working underground until he was laid off in December 2023.
20The payor filed a sworn Financial Statement together with income tax documentation from 2015 to 2025. The reported Line 15000 income figures before the court were as follows:
| Taxation Year | Reported Line 15000 Income | Supporting Document |
|---|---|---|
| 2015 | $113,517.00 | Notice of Assessment |
| 2016 | $253,452.00 | Notice of Assessment |
| 2017 | $148,869.08 | T1 Summary |
| 2018 | $123,602.99 | T1 Summary |
| 2019 | $88,147.42 | T1 Summary |
| 2020 | $150,017.00 | Notice of Assessment |
| 2021 | $130,772.59 | T1 Summary |
| 2022 | $158,420.07 | Income Tax Return and T4 Slip |
| 2023 | $138,193.80 | T4 Slip |
| 2024 | $20,083.00 | T1 Summary |
21The payor stated that, while his actual income was generally consistent with the imputed income for several years, his income declined significantly beginning in 2024 and no longer reflected the income assumptions underlying the support orders.
22The payor stated that he was experiencing financial hardship. He stated that he was living below the poverty line and had been contacted by debt collection agencies regarding outstanding debts.
23The payor stated that he moved in with his 91-year-old mother in 2025 and acted as her caregiver. He stated that he expected receiving Canada Pension Plan and Old Age Security benefits and anticipated that those benefits would become his source of income.
24The payor stated that he intended to bring a variation motion to change the support order. He would seek variation based on what he described as his actual income rather than the income imputed by the existing orders.
25The Payor further requested that he neither be noted in default nor required to make payments toward the spousal support arrears. Alternatively, he sought an order permitting him to pay arrears at the rate of $100 per month.
Documentary Evidence Filed by the Payor
26In support of his affidavit, the payor filed three exhibits: a Director's Statement of Arrears dated July 10, 2025, a CBC news article concerning the Snow Lake mine fire, and three debt collection notices.
27The Director's Statement of Arrears recorded support arrears of $45,756.63 and Family Responsibility Office fees of $400.00, for a total balance of $46,156.63 as of July 10, 2025.
Part Four – General Legal considerations on default hearings
28The statutory framework governing default hearings is found in s. 41 of the Family Responsibility and Support Arrears Enforcement Act ("FRSAEA") and rule 30 of the Family Law Rules. The Director initiates the proceeding and prepares a statement of arrears. The payor may file a financial statement and dispute the arrears. The court receives evidence, determines any issues in dispute, and may make the orders authorized by the legislation.
29The primary issues at a default hearing are the amount of arrears and the payor's ability to pay. Section 41(9) of the FRSAEA creates two important presumptions.
First, the payor is presumed to have the ability to pay the arrears and make future support payments unless the contrary is established.
Second, the Director's Statement of Arrears is presumed to be correct for arrears that accrued while the order was filed with the Director. The burden rests on the payor to rebut those presumptions.
30Section 41(10) of the FRSAEA gives the court broad powers to enforce support obligations where a payor fails to establish an inability to pay for valid reasons. Those powers include ordering the payment of arrears by periodic or lump sum payments, directing compliance with the support order to the extent of the payor's ability, requiring the commencement of a motion to change, ordering security, requiring reporting obligations, and, in appropriate circumstances, ordering imprisonment for a period not exceeding 180 days.
31A default order does not stop arrears from accruing and does not limit any other enforcement mechanism available to the Director. Further, imprisonment under s. 41(10) does not discharge arrears. Sections 41(11) and 41(17) expressly preserve both the arrears and the Director's other enforcement remedies.
32To rebut the statutory presumption, a payor must establish an inability to pay due to valid reasons. A valid reason is generally an event beyond the payor's control that renders the payor without assets or income with which to satisfy the support obligation, such as disabling illness or involuntary unemployment. (Ontario (Director, Family Responsibility Office) v. Carney, 2004 ONCJ 11; Ontario (Director, Family Responsibility Office) v. Muslim, 2024 ONCJ 116).
33In Ontario (Director, Family Responsibility Office) v. Labrash, the court held that a payor seeking to establish a valid inability to pay must demonstrate three things:
a. the circumstance giving rise to the failure to pay was not voluntary,
b. the payor accepted responsibility for the support obligation, and
c. the payor provided full and frank disclosure to the court.
34In Ontario (Director, Family Responsibility Office) v. De Francesco, Justice Carolyn Jones elaborated on the meaning of "valid reasons" under s. 41(10) of the FRSAEA. The following principles emerge from paragraph 21 of her decision:
a. A valid reason is one for which a payor cannot fairly be faulted.
b. The court expects evidence showing that, despite reasonable, diligent and legitimate efforts, the payor was unable to comply with the support order.
c. The inability to pay must not arise from unwillingness, a lack of effort, a failure to prioritize support obligations, or deliberate avoidance.
d. The court may consider the payor's financial circumstances, use of income and assets, and efforts to secure employment or income during the period in which the arrears accumulated.
e. A mental disorder may constitute a valid reason for non-payment where it renders the payor completely unable to work on either a full-time or part-time basis.
35However, inability to pay is not the same as difficulty paying. A payor must establish an actual inability to satisfy the support obligation. Evidence of financial hardship, standing alone, is not sufficient. 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, 2024 ONCJ 64.
36Full and frank financial disclosure is central to the determination of a payor's ability to pay. A party seeking relief from a support obligation must provide the court with sufficient financial information to permit a meaningful assessment of their circumstances. An adverse inference may be drawn against a party who fails to comply with disclosure obligations or who provides incomplete financial information. See: Smith v. Pellegrini, 2008 CanLII 46927 (ON SC), [2008] O.J. No. 3616 (S.C.J.); Maimone v. Maimone, 2009 CanLII 25981 (ON SC), [2009] O.J. No. 2140 (S.C.J.); Charron v. Carriere, 2016 ONSC 4719; Ontario (Director, Family Responsibility Office) v. Ramgopaul, 2024 ONCJ 562.
37A default hearing is not an appeal from the underlying support order and is not a forum for re-litigating findings already made by another court. Where a support order remains in force, the court's role is to determine how that order should be enforced and whether the payor has established valid reasons for non-payment. If a payor seeks to change the support obligation itself, the appropriate remedy is generally a motion to change. (Ontario (Director, Family Responsibility Office) v. Ramsay, 2024 ONCJ 64; Ontario (Director, Family Responsibility Office) v. Ramgopaul, 2024 ONCJ 562).
38Enforcement proceedings under the FRSAEA are remedial rather than punitive. Their purpose is to secure compliance with support obligations, not to punish support payors. See: Saunders v. Saunders, 1987 CanLII 8295 (ON HCJ), [1987] O.J. No. 1578 (Dist. Ct.); Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825.
39Imprisonment is a remedy of last resort. Something more than non-payment is required. The payor's conduct must demonstrate a wilful and deliberate disregard of the obligation to comply with support orders. The purpose of imprisonment is enforcement, not punishment. See: Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825.
40In Fischer, the Court of Appeal emphasized that imprisonment under the FRSAEA is intended to induce compliance with support obligations. Its enforcement rationale makes sense only where the payor has the ability to make the payments ordered. A committal order is not imposed to punish a payor for past conduct. It is a mechanism designed to secure compliance with existing support obligations. (Fischer, at para. 25).
41In FRO v. Hennessy, 2022 ONSC 2594, the court identified the following non-exhaustive factors (the Hennessy factors) relevant to whether imprisonment is appropriate:
a. The pattern of accumulated arrears.
b. Whether payments were made voluntarily or only through enforcement measures.
c. The payor's disclosure of income sources.
d. Previous court findings concerning the payor's conduct.
e. The timeliness of any efforts to vary the support order.
f. Evidence that the payor has prioritized personal interests over support obligations.
42Finally, a court conducting a default hearing must also consider the interests of the support recipient and the consequences of unpaid support. Support obligations play an important role in reducing economic hardship following the breakdown of a relationship. Courts must remain mindful of those consequences when exercising their enforcement powers under the FRSAEA.
43In Michel v. Graydon, the Supreme Court of Canada recognized the connection between unpaid support and poverty. The failure to receive court-ordered support can have significant economic consequences for support recipients who rely on those payments. In Director, Family Responsibility Office v. Masoud, 2021 ONCJ 265, at para. 72, Justice Sherr stated:
"It 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."
Part Five – The payor’s ability to pay the arrears
The Issue
44The central issue is whether the payor established his inability to pay support payments for valid reasons.
45The payor acknowledged that support arrears were owing. As of July 14, 2026, the Director's Statement of Arrears recorded support arrears of $84,321.98 and Family Responsibility Office fees of $400.00, for a total balance of $84,721.98.
Financial Disclosure
46The payor filed a sworn Financial Statement and various income tax documents from 2015 to 2025. However, the record contained limited evidence concerning his financial circumstances from 2025 to the hearing date.
47The payor's financial disclosure reflects reported annual income exceeding $100,000 in most years between 2015 and 2023. The records reflect income from a variety of sources, including employment income, Employment Insurance benefits, RRSP, and other reported income.
48The reported income figures assist in understanding the payor's financial circumstances during the period in which the arrears accumulated. However, historical income information does not establish a payor's current ability or inability to pay. A payor seeking to establish valid reasons for non-payment must provide evidence relating to the period in which the alleged inability arose.
49Under s. 16 of the Federal Child Support Guidelines, income for support purposes generally begins with the payor's total income reported at Line 15000 under the Income Tax Act. However, Guideline income is not necessarily the same as Line 15000 income. The Guidelines permit adjustments and, in some circumstances, require a different calculation of income for support purposes.
50The court referred to the reported income figures only as part of the payor's financial history and circumstances during the period in which the arrears accumulated. The court makes no finding regarding the payor's Guideline income for support purposes.
Diversion Payment History
51Compliance with the support order was often achieved through enforcement measures rather than voluntary payments by the payor. The Director's Statement of Arrears records the following significant FOAEA diversions:
| Date | Amount Recovered Through FOAEA Diversion |
|---|---|
| April 28, 2016 | $18,186.36 |
| April 20, 2017 | $11,224.06 |
| April 18, 2019 | $22,213.93 |
| May 7, 2020 | $17,139.80 |
| May 27, 2021 | $26,756.05 |
| May 5, 2022 | $18,438.94 |
| June 20, 2024 | $19,945.04 |
| March 19, 2026 | $8,096.54 |
52Between 2017 and 2023, support continued to be collected. However, the record demonstrates an increasing reliance on enforcement measures to satisfy the payor's support obligations. Significant arrears repeatedly accumulated and were periodically reduced through enforcement recoveries. By June 2025, the Statement of Arrears reflected a single electronic payment of $62.37. Thereafter, arrears continued to accrue monthly and largely unabated.
Mental Health Evidence
53The payor relied on mental health challenges to explain his non-payment of support. In De Francesco, Justice Jones recognized that a mental disorder rendering a payor completely unable to work may constitute a valid reason for non-payment.
54A mental health condition may constitute a valid reason for non-payment. However, the condition and its impact on a payor's earning capacity must be established on the evidence before the court. The record contained no physician reports, psychological assessments, treatment records, disability determinations, functional assessments, or other independent medical evidence concerning the payor's alleged inability to work. The payor's claims of depression, anxiety, insomnia, and post-traumatic stress disorder were not supported by any medical documentation.
55Unlike the evidentiary record in DeFrancesco v. DeFrancesco, 2023 ONSC 5663, the court had no expert or independent medical evidence concerning the payor's alleged inability to work.
Financial Hardship
56The payor also relied on financial hardship. He claimed that he lived below the poverty line, was contacted by debt collection agencies, and had moved in with his 91-year-old mother.
57Financial hardship alone does not establish an inability to pay. As noted in Aitken v. Aitken and Ramsay, inability to pay is not the same as difficulty paying. The question is whether the payor established an actual inability to satisfy his support obligations.
58The payor filed three debt collection notices. However, the record did not contain information regarding the commencement of collection proceedings, the recovery of any amounts, or the current status of the debts referenced in those notices.
Motion to Change
59The payor stated that he intended to bring a motion to change the support orders. On the March 4, 2026 court appearance, during the default hearing process, he agreed to pay $100 per month toward the arrears. The Statement of Arrears does not record any $100 monthly payments following that undertaking. Instead, the payments credited to the account after March 4, 2026 consisted of FOAEA diversions.
60The Director submitted that the payor had been afforded time during the default hearing process to pursue a motion to change but did not do so. The Director further submitted that the payor did not comply with his undertaking to make monthly payments toward the arrears. These submissions engage the Hennessy factor concerning the timeliness of a payor's efforts to seek a variation of a support order.
61A default hearing is not a substitute for a motion to change. A payor who asserts that a support order no longer reflects his circumstances remains responsible for pursuing the appropriate variation process.
The Hennessy Factors
62Several of the Hennessy factors are engaged on this record. They include:
a. A lengthy pattern of arrears accumulation.
b. The use of repeated enforcement measures and diversions to recover support.
c. The absence of evidence regarding the payor's current financial circumstances and alleged inability to work.
d. The timing of the payor's stated intention to bring a motion to change after substantial arrears had already accumulated.
e. The need to assess the payor's conduct against years in which he reported significant employment income.
Role of the Court
63The function of a default hearing is not to revisit the correctness of existing support orders. The court's task is to determine whether the payor established valid reasons for non-payment and, if not, what enforcement order is appropriate in the circumstances.
64The court finds the following:
a. The payor has accumulated substantial arrears over an extended period.
b. The payment history reflects a recurring reliance on enforcement measures, including repeated FOAEA diversions, rather than consistent voluntary compliance.
c. The payor provided financial disclosure relating to prior years. However, he did not provide independent evidence of his income, financial circumstances, or alleged inability to work during the period from 2025 to the hearing date. The court draws an adverse inference from the absence of corroborating medical evidence and from the limited evidence regarding his current income sources, benefits, and efforts to obtain income replacement.
d. The payor did not provide evidence that he applied for Canada Pension Plan disability benefits, Ontario Works, another income replacement program, a consumer proposal, or bankruptcy protection.
e. The payor undertook during the default hearing process to pursue a motion to change and make interim payments. No evidence was filed showing that he commenced a motion to change, and the record does not establish compliance with that undertaking.
f. The payor relied on mental health challenges to explain his non-payment. However, no independent medical evidence was filed in support of that claim.
g. The payor reported substantial income during much of the period in which the arrears accumulated.
h. The support recipient has a continuing interest in the enforcement of the support orders. The record reflects ongoing enforcement efforts spanning many years.
i. The payor provided some financial disclosure and tax records relating to prior years, from 2015 until 2025. However, he did not provide independent evidence of his income, financial circumstances, or alleged inability to work during the period from 2025 to the hearing date. As a result, he did not rebut the statutory presumption in s. 41(9) of the FRSAEA.
65For the reasons set out above, the court finds that the payor did not establish an inability to pay for valid reasons. The court must therefore determine the appropriate default order.
Part Six – The Default Order
66One of the primary objectives of a default hearing is to maximize the enforcement of a valid and subsisting support order.
67The court must also recognize that imprisonment is a remedy of last resort. A default order should not expose a payor to imprisonment unless the court is satisfied that the payor has the ability to comply with the order being made.
68The court must balance the objective of enforcing support obligations against the risk of unjustly imprisoning a payor who lacks the ability to comply. This balancing exercise requires a careful assessment of the evidence and circumstances of the case. See: Ontario (Family Responsibility Office) v. Levy, 2016 ONCJ 474.
69In determining the appropriate order, the court must also consider the interests of the support recipient. The court's analysis cannot focus exclusively on the payor. Unpaid support may have significant economic consequences for those who depend upon court-ordered support to meet their needs.
70The court accepts the Director's position that a committal term should be attached to any payment order made in this case.
71Applying the Hennessy factors and having regard to the entire record, the court is satisfied that a payment order alone would not adequately address the circumstances of this case. The pattern of arrears accumulation, the repeated reliance on enforcement measures, the absence of evidence establishing a valid inability to pay, and the failure to pursue the variation process despite having been afforded time to do so support the inclusion of a committal term in the default order.
72The court is satisfied that the default order must contain meaningful consequences for non-compliance.
Part Seven – Conclusion
73There shall be a final default order on the following terms:
a. Spousal support arrears are fixed in the amount of $84,721.98 (being $84,321.98 on account of arrears and $400.00 on account of an administration fee) as of July 14, 2026.
b. The payor shall continue to make the monthly spousal support payments of $4,000.00 pursuant to the order of Fregeau J. dated June 20, 2022.
c. The payor shall also pay $1,000.00 per month on account of arrears, commencing August 15, 2026 and payable on the 15th day of each month thereafter until the arrears are paid in full.
d. Pursuant to s. 41(10)(i) of the FRSAEA, the support payor shall be imprisoned for 3 days for each breach of this order up to a maximum of 180 days or until payment is made, whichever is sooner. The Director of FRO may apply with personal service on the payor for a Warrant of Committal.
e. The Director of the Family Responsibility Office may apply, upon personal service on the payor, for a Warrant of Committal in the event of a breach of this order.
f. The payor shall notify the Family Responsibility Office in writing of any change, within 10 days of said change, in his residential address and contact information and any change in his income or other benefits status, including the name, address and telephone number of any employer or other source of funds, and further including, but not limited to lottery wins, financial windfalls of any nature or kind and/or inheritances, as soon as it/they occur(s) or are received.
g. Nothing in this order precludes the Director from collecting arrears through any other enforcement remedy available under the Family Responsibility and Support Arrears Enforcement Act.
h. All written communication and notification herein shall be made by the Respondent, Albert Maurice Derouard, to the Family Responsibility Office, P.O. Box 200, Station A, Oshawa, Ontario, L1H 0C5, with his FRO Case Number 1037668 included thereon.
74The Director requested an order requiring the payor to pay $400.00 in costs to the Family Responsibility Office. The court is not satisfied that a separate costs order is necessary, as the amount of $400.00 is already reflected in the Director's Statement of Arrears as Family Responsibility Office fees and forms part of the total amount owing.
Released: July 30, 2026
Justice Archana A. Medhekar