Sudbury File No. 732-06

DATE: 2008·III·04

SUPERIOR COURT OF JUSTICE

THE DIVISIONAL COURT

BETWEEN:

DIRECTOR OF THE FAMILY RESPONSIBILITY OFFICE,

Appellant,

— AND —

GUY BRISSON and LISETTE BRISSON,

Respondents.

Before Justices Susan E. Greer, Peter B. Hambly and Bruce A. Glass

Heard on 3 March 2008

Reasons for Judgment released on 4 March 2008

CIVIL PROCEDURE — Costs — Entitlement or liability — State enforcement of support orders — Enforcement agency’s obligation with respect to surplus funds — Whether retention of surplus funds constitutes unreasonable behaviour that justifies making of costs order against agency — During divorce proceeding, Family Responsibility Office (“FRO”) revealed that it had accumulated surplus money under support order involving parties to divorce — It explained that surplus money had not been paid out because there was no court order authorizing payout — Divorce court judge found that FRO’s inertia was contrary to Director’s legal duties set out at subsection 5(1) of Family Responsibility and Support Arrears Enforcement Act, 1996, and that FRO’s retention of surplus money was unreasonable and led to additional and unnecessary legal proceedings between parties — Judge concluded that such behaviour justified making costs award against FRO — FRO appealed — Appeal court pointed out that FRO was not party to support disputes between payors and recipients and could not be subject to costs under section 131 of the Courts of Justice Act in context of such disputes — If FRO account should reveal surplus money, it would be parties who have chance to inquire about funds and who have responsibility to make application for funds — Retention of surplus funds in FRO account was not unreasonable, given that there was no court order for payout — FRO’s appeal allowed.

STATUTES AND REGULATIONS CITED

Child Support Guidelines, O. Reg. 391/97.

Courts of Justice Act, R.S.O. 1990, c. C-43, section 131 — considered

Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, subsection 5(1).

CASES CITED

Television Real Estate Ltd. v. Rogers Cable T.V. Ltd., 1997 999, 34 O.R. (3d) 291, 99 O.A.C. 226, 12 C.P.C. (4th) 381, [1997] O.J. No. 1944, 1997 Cars­well­Ont 1580 (Ont. C.A.).

Diane E. Gillies ............................................................................. counsel for the appellant Director

Christopher D. McInnis .......................................................................... counsel for the respondents

For previous proceedings, see Brisson v. Brisson, 2006 25406, 150 A.C.W.S. (3d) 50, [2006] O.J. No. 3051, 2006 Cars­well­Ont 4651 (Ont. S.C.), per Justice Michael R. Meehan.

PER CURIAM:

INTRODUCTION

[1] The Director, Family Responsibility Office (referred to as “FRO”) appeals a costs award based on failing to pay out a surplus of funds paid under a Family Court support order. The Director argues that FRO acted according to the existing order for spousal and child support that existed. The Director does not pay out extra funds without the existing order filed with FRO having been varied by a further order of the court.

[2] The existing order of Justice John S. Poupore of 7 June 2004, suspended outstanding payments provided that the payor paid a new support payment without missing payment at all for three years. This new quantum of child support was to be paid regardless of any change in the financial circumstances of the payor. If he did so, then all arrears of child support prior to the order of 7 June 2004 would be expunged. Missing any payment during the three-year period would vacate the 7 June order and the arrears would not be removed. The order provided that, if the payor’s income increased above $31,000 per year, his child support obligations would increase to the amount set out in the Child Support Guidelines, O. Reg. 391/97. The payor, Mr. Brisson, was obliged to provide full financial disclosure to the receiving party, Ms. Brisson.

[3] On 9 May 2006, during a divorce proceeding, Justice Michael R. Meehan made an order that FRO appear within 30 days to explain why the extra funds paid by the payor had not been remitted to Ms. Brisson. On 21 June 2006, FRO reported there were no arrears and there was a surplus of $7,076.10. FRO policy was explained to be one of collecting and remitting funds pursuant to a court order. Since there was no order for payment out of the surplus, the funds were not paid to anyone.

[4] On the basis that there was no explanation for keeping Mr. Brisson’s money beyond the policy of not remitting without a court order, Justice Meehan determined that the lack of action by the Director appeared to be contrary to the duties of the Director found at subsection 5(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31. Failing to notify the parties of the policy for FRO regarding keeping money without interest was unreasonable and led to additional and unnecessary legal proceedings between the payor and the recipient. Justice Meehan concluded that the failure of the Director to take reasonable steps to enforce payment warranted costs being fixed against FRO.

[5] Costs were fixed at $1,000 to Mr. Brisson as the payor and $1,500 to Ms. Brisson as the recipient.

ISSUES

1. Is FRO a party to the family court proceedings?

2. If not, can costs be awarded against a non-party?

3. Did FRO act in an unreasonable manner in not paying out surplus funds?

4. Was there an order for FRO to act upon and pay out surplus funds?

ANALYSIS

[6] FRO is not a party to these proceedings and cannot be the subject of a costs award in this proceeding. Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, permits the courts to determine by whom and to what extent costs should be paid. In Television Real Estate Ltd. v. Rogers Cable T.V. Ltd., 1997 999, 34 O.R. (3d) 291, 99 O.A.C. 226, 12 C.P.C. (4th) 381, [1997] O.J. No. 1944, 1997 Cars­well­Ont 1580, the Ontario Court of Appeal interpreted section 131 of the Courts of Justice Act to mean that the courts may determine which of the parties to the proceeding should pay costs. An exception has been made if a non-party has status to bring an action but did not elect to do so. Such circumstances do not apply to FRO here.

[7] Further, not paying out the surplus money is not an unreasonable act. There was not an order to do so. Persons who are responsible for paying pursuant to a court order have a responsibility to act and not to wait for another body to act for them. The payor here was aware of the order, the terms of the order and appears to have failed to follow all terms of the June 2004 order. It is not uncommon for payors to make the mistake of not applying to vary a support order when their financial circumstances change or when the receiving person’s circumstances change. When such circumstances arise, FRO does not have the responsibility to contact all parties involved with FRO to attempt to determine whether a change of financial circumstances applies.

[8] If there is a surplus of funds in the FRO account, the parties have the opportunity to inquire about such funds. In addition, the parties have the responsibility to make application for surplus funds.

[9] Paragraph 1(i) of the order of Justice Poupore reads as follows:

Mr. Brisson shall provide full financial disclosure to Lisette Brisson each year not alter [sic] than June 1, commencing in 2005, including his income tax returns and all notices of assessment and/or re-assessment, and his three most recent pay stubs, failing which subparagraph (e) shall apply.

Paragraph 1(e) allows the order itself to be vacated with respect to arrears in the event of a breach of paragraph 1(i). Mr. Brisson frankly admitted that he had missed providing Lisette Brisson with such documentation for the year 2006. Order to go that all missing documentation in paragraph 1(i) be delivered to Lisette Brisson within 30 days of this order, failing which Lisette Brisson shall have the right to bring a motion to compel such disclosure.

CONCLUSION

[10] The FRO statements to 1 February 2008 reveal a surplus of over $14,091.10 that Mr. Brisson is prepared to pay out to Lisette Brisson. Order to go that such payment be made to Lisette Brisson of these funds together with any further surplus funds on hand to the date of this order.

[11] The order for costs against the FRO was incorrect. It was an error based on FRO’s not being a party to the proceedings and therefore not subject to a costs award. The act of retaining the surplus funds in the FRO account was not unreasonable.

[12] The order of Justice Meehan is set aside. There shall be no costs against the Director, the Family Responsibility Office.