Court File and Parties

Court File No.: 42/98-E000

Sault Ste. Marie

Ontario Court of Justice

In the Matter of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, as amended

Between:

Kevin Hammond, Applicant, Support Payor (Self-represented)

— And —

Director, Family Responsibility Office

Murdoch Carter, for Respondent

Heard: January 15, 2013

Before: Kukurin J.

Endorsement

[1] This decision is on a motion brought by the support payor seeking an order from this court requiring the Director, Family Responsibility Office (hereafter referred to as "FRO") to refrain from directing the suspension of the payor's Ontario driver's licence.

[2] FRO served on the payor a "First Notice of Intention to Suspend Driver's Licence" dated December 12, 2012. This notice informed the payor that he was in arrears of support in the amount of $7,017.58 and that he had three options, one of which he must choose prior to January 18, 2013 if he wanted to avoid the suspension of his driver's licence. [1] I assume that the thirty day period after date of service of this notice expires January 18, 2013.

[3] The payor elected to bring the present motion for a refraining order. [2] This motion was filed December 24, 2012 first returnable January 2, 2013. It was adjourned on January 2 to January 11, and then to this day (January 15) for hearing.

[4] In the interim, the payor has commenced a Motion to Change proceeding [3] in this court seeking to vary the support order that is being enforced by FRO and under which the payor is in arrears of payment. The payor has obtained a court date for that Motion to Change. It is February 13, 2013.

[5] From a procedural point of view, the payor has complied with the requirements of the Family Responsibility and Support Arrears Enforcement Act (the "Act") which is the statute pursuant to which FRO is taking steps to suspend the payor's driver's licence, and pursuant to which the payor is taking steps to obtain an order to require FRO to refrain from doing so. FRO has not complained of any procedural deficiencies on the part of the payor in relation to this motion to refrain.

[6] FRO does, however, oppose the claim for a refraining order. The basis of this opposition is fourfold. I deal with these issues individually.

First Objection: Res Judicata

[7] Firstly, FRO argues that variation of the support order is a matter that is res judicata, namely that such variation was a claim dealt with by this very court in its decision in a prior proceeding which resulted in an order dated July 4, 2012 dismissing the payor's claim for variation of child support. There is a limitation under the Family Law Act ("FLA") which prevents a party to a support order from bringing a motion to vary before six months have elapsed from the date the order was made, or from the date that a prior claim for variation of that order was disposed of. [4]

[8] In this case, the payor's present Motion to Change the support order was filed January 7, 2013 which is beyond the six months extending after the July 4, 2012 dismissal of his prior variation claim. This effectively is an answer to FRO's first objection. However, it does not completely respond to the res judicata argument.

[9] This second objection argues that even if the payor is now entitled to bring another Motion to Change the support order, the claim in such motion is destined to be unsuccessful because the previous claim just six months ago resulted in a complete dismissal. More to the point, the previous motion to change was to vary the same order that the present motion to change is brought to vary. The court, argues FRO, has already pronounced a decision on this issue, and consequently it is "res judicata", and for many reasons related to the doctrine of "res judicata", should not be permitted to proceed any further. As a further extension to this argument, FRO argues that if the payor's present motion to change is permitted to proceed, it can, at most deal only with arrears that have accrued since the July 4, 2012 date of the dismissal of the previous motion to change. Any arrears prior to that time were presumably dealt with by the order made on July 4, 2012.

[10] This second objection fails. The main reason it fails is that it ignores what the prior motion to change claim was for, why it was dismissed, and how that dismissal came about. Neither FRO nor payor has filed, in this motion for a refraining order, any evidence relating to the prior motion to change, or to the order dismissing the child support variation claim. I am, I believe, if not able to take formal judicial notice of the nature of that prior proceeding and its outcome, able, at least, to take both of these things into account as factors in the present motion before me. I say this for several reasons. I am the judge who heard the trial which involved that prior motion. I rendered the decision and made the order. The order is in the present court file in which the motion to refrain is brought as are the Reasons for that dismissal which are additionally reported [5] for FRO, and for the payor or anyone else to view.

[11] The prior claim for variation of the support order was one brought for "termination" of that order, such termination being contingent on the payor obtaining a change in custody of the child for whose benefit the order of support was made. That change in custody was not granted in the prior proceeding. Accordingly, the claim to change (ie terminate) support failed, and for that reason alone. There was no other basis for that prior variation claim, and there was neither evidence nor argument tendered to support any variation for any other reason. Accordingly, the issue of child support variation is not "res judicata" as it was never dealt with on its merits. It certainly was not dealt with on the grounds on which the payor is bringing his current Motion to Change. In these circumstances, the argument that the current Motion to Change would be limited only to child support arrears that accrued after the date of dismissal of the prior variation motion is less than persuasive. No such limitation applies.

Second Objection: Need for Driver's Licence

[12] Thirdly, FRO argues that the payor has produced no evidence why he requires a driver's licence. The inference I draw from this argument is that FRO believes that the payor's need for keeping his licence is a factor in whether a refraining order should or should not be made. If this is so, I disagree. There is nothing in Part V [6] of the Act that makes the need of the payor for his or her driver's licence a criterion for granting or refusing to grant a refraining order. In fact, Part V is conspicuously devoid of any criteria for the granting of a refraining order. The scheme of Part V is mostly administrative in nature. It establishes some pre-requisites before such an order can be made. It also imposes some limitations, primarily temporal in nature, on the payor seeking such order, and on the court to which such request is made. Whether the making of such an order involves any degree of exercise of judicial discretion is not spelled out at all clearly, and if it does, there is nothing by way of statutory guidance in Part V as to how this discretion should be exercised. I should add that the payor does have a driver's licence. The suspension of that licence is a step instigated by FRO. It seems to me that if there is an onus with respect to evidence relating to the need for, or the lack of need for, such a licence, that onus should fall on FRO, not on the payor.

Third Objection: Clean Hands and Prima Facie Case

[13] Fourthly, FRO argues that the payor must come to the court with "clean hands" and must satisfy the court that he has a prima facie case for the variation of support he is seeking in his Motion to Change. In support of this contention, FRO cites a 2010 decision of the Superior Court of Justice. [7]

[14] Many a jurist has referred to the "clean hands" metaphor. While the meaning is not difficult to grasp, what constitutes clean hands, or, more precisely, when are the hands of an applicant to the court not "clean hands" is considerably more difficult to define. There is no good reason to start with any premise other than the premise that anyone applying to the court for relief is doing so with "clean hands". If a party is alleging the contrary, it seems to me that it is up to that party to satisfy the court of this. In the present case, FRO has not done so, neither with evidence nor with argument. The fact that a prior Motion to Change was brought and dismissed just six months ago, and the fact that the payor is in arrears of support payments by a substantial amount do not, without further evidence, sully his hands.

[15] The contention that the payor must show a prima facie case for his variation of support claim is the more tangible and the more serious one. The case authorities relied upon by FRO in support of this requirement are persuasive, but not binding on this court. A closer examination of these authorities show that the Garneau case cited by FRO dealt with a payor's Motion to Change which had two claims. The first, and by far the most important, was for an order suspending the enforcement of support by FRO. The second was for an order "refraining FRO from suspending his driver's licence".

[16] It is clear that the payor in the Garneau case had sought the wrong relief. The court felt that he should have sought a stay of his ongoing support obligation. The court proceeded to determine that claim even though it had not been made. There was considerable evidence in that case, including from the support recipient who was a named party, on which the court concluded that the payor had failed

"to establish a prima facie case on the merits to demonstrate that there has been a material change in circumstances."

[17] For this reason, the court also dismissed the payor's motion for a refraining order. However, there had already been a refraining order made earlier in that case, apparently on consent, and on condition that the payor make certain periodic payments. He had defaulted on these and FRO served a second notice of intention to suspend. It was with respect to this notice that the motion claim for a refraining order had been brought.

[18] There are enormous differences between the Garneau case and this case. In the present case, there is no evidence in this Motion to Change proceeding other than what the payor has filed. [8] The Motion to Change case is in its infancy. The support recipient has not responded and her time to respond has not yet elapsed. From the perspective of a prima facie case, the court has a motion applicant who claims he has lost his previous employment, who has no income other than rental income from properties he owns and manages, who claims that there has been a drastic change of circumstances since the support order was made, primarily in his annual income, and who argues that he is below the Child Support Guideline threshold for payment of any support. FRO is the only other party to his motion for a refraining order. FRO has not effectively attacked any of these allegations to the point that this court is persuaded that the payor does not have a prima facie case for a child support variation, although, perhaps, not the particular one he is specifically seeking.

[19] Moreover, there has been no prior refraining order made with any conditions of which this payor has defaulted.

Balancing Enforcement Powers and Payor's Rights

[20] Perhaps more importantly, the payor in the present motion is not seeking a blanket suspension of support enforcement by FRO, nor is he seeking a court order to stay enforcement by FRO. His claim in this motion is very limited, namely to have this court order FRO to refrain from directing the suspension of his driver's licence. He is not asking for judicial relief with respect to any other enforcement methods that FRO has available to extract monies from him. In fact, it appears from FRO's Statement of Arrears filed by FRO in this case that some monies have been received recently by FRO on account of the court order being enforced, although no one is clear on how this has come to pass. [9]

[21] There is often a balancing required in circumstances such as these. The Act gives FRO a great deal of power in carrying out its enforcement mandate. Some of the means it may employ can be draconian. On the other hand, the payor in default has already had a court proceeding which has determined that he (or she) should pay support. If there are arrears, there is non-compliance with a prior valid court order. A support payor in default is not the same as a respondent in a claim for support against whom no support order has yet been made. The defaulting payor has an uphill battle. He (or she) has to convince the court that there is some acceptable reason for existence of the arrears, or that the order should be changed, or both. That battle, however, takes place in the Motion to Change proceeding, the commencement of which is a requirement for a refraining order. In other words, there may be some good reason for the arrears. The payor in default should not be foreclosed, nor unduly hampered, if he takes the proper procedural steps to have the issue of whether the support order should be changed placed before the court. Nor should he (or she) dawdle in doing so. The provisions of Part V of the Act impose temporal constraints on payors seeking changes to their support orders. These compel payors to bring their Motions to Change in a timely manner and move the proceedings along, failing which they may prejudice their entitlement to a refraining order and find themselves without a driver's licence. [10]

[22] The payor in this case has commenced his Motion to Change. He has secured a first court return date. In this, he is, so far, acting reasonably. He has filed some evidence on his motion for a refraining order that indicates he is without employment since approximately early or mid 2010. The support order is dated August 12, 2003. His history of payment under the order for the seven years between 2003 and 2010 is of some relevance to his motion for a refraining order. FRO's Statement of Arrears discloses that while he has been chronically behind in payments, his arrears have almost always been under $1,000 for these seven years, he has made payments regularly and faithfully by pre-authorized payments from May 1999 to December 2000 [11], and thereafter by telebanking from January 2001 to August 2010 when his payments stopped. The interruption of a history of making regular payments coinciding with his allegation of loss of employment at about the same time suggest that there may be some explanation for why he has arrears that he is not paying. He should be given an opportunity to do so.

[23] Finally, while suspension of a person's driver's licence is an enforcement step that may prompt a defaulting support payor to take steps to address his (or her) default, this is not always so. For some payors, having or not having a valid and subsisting licence has little effect on their resumption of support payment. In fact, taking away a person's ability to drive may impede, or prevent, efforts to work and generate income.

[24] Refraining orders are not forever orders. They have a limited time span. Eventually, they end.

[25] For all of the reasons above, I am inclined to grant the refraining order sought by the support payor in this case.

Released: January 22, 2013

Signed: "Justice John Kukurin"

Footnotes

[1] S.34 First notice — When a support order that is filed in the Director's office is in default, the Director may serve a first notice on the payor, informing the payor that his or her driver's licence may be suspended unless, within 30 days after the day the first notice is served,

(a) the payor makes an arrangement satisfactory to the Director for complying with the support order and for paying the arrears owing under the support order;

(b) the payor obtains an order to refrain under subsection 35(1) and files the order in the Director's office; or

(c) the payor pays all arrears owing under the support order.

[2] 35. Order to refrain.— (1) A payor who receives a first notice and makes a motion to change the support order may also, on notice to the Director, make a motion for an order that the Director refrain from directing the suspension of the payor's driver's licence under subsection 37(1), on the terms that the court considers just, which may include payment terms.

[3] S.35(4) Exceptions. — Despite subsection (1), a motion for an order to refrain may be made,

(a) before making a motion to change the support order, on the undertaking of the payor or the payor's lawyer to obtain, within 20 days after the date of the order to refrain, a court date for the motion to change the support order; or

(b) without making a motion to change the support order, if the payor has started an appeal of the support order and the appeal has not been determined.

[4] S.37(3) Limitation on applications for variation.— No application for variation shall be made within six months after the making of the order for support or the disposition of another application for variation in respect of the same order, except by leave of the court.

[5] At 2012 ONCJ 458, [2012] O.J. No. 3288

[6] Part V of the Act is entitled "PART V — SUSPENSION OF DRIVERS' LICENCES"

[7] Garneau v. Director, Family Responsibility Office et al, 2010 ONSC 2804 (Quinlan J - Ontario Superior Court of Justice) which in turn cites Halstead v. Halstead [1993] O.J. No. 1781 and Yip v. Yip [1998] O.J. No. 2784, (1998), 15 R.F.L. (3d) 211 as previous authorities for this proposition.

[8] Other than a Director FRO's sworn Statement of Arrears filed on a previous court date.

[9] It is unfortunately not uncommon for FRO counsel who tenders a Director's Statement of Arrears to be unable to decipher from the "coding" on such statements what the specific method of collection of a particular payment may have been. In this case, for example, there are codings of "EDI IDENT" and "FOAEA DIVERSION RECEIPT" for the past year and a half showing various "amounts paid"

[10] S.35(19) Duration of order. — An order to refrain terminates on the earliest of,

(a) the day the order to refrain is terminated under subsection (9);

(b) the day the motion to change or the appeal is determined;

(c) the day the support order is withdrawn from the Director's office; and

(d) the day that is six months after the order to refrain is made.

S.35(20) Exception. — Despite subsection (19), an order to refrain made before the making of a motion to change the support order is automatically terminated if the payor does not, within 20 days after the date of the order to refrain, obtain a court date for the motion to change the support order.

[11] Evidently, the payor had a support order prior to the one currently in effect.