Court File and Parties
Court File No.: Halton 188-09 Date: 2017-07-28 Ontario Court of Justice
Between:
The Director, Family Responsibility Office For the benefit of Nancy Saporowski
Applicant
— AND —
Walter Garrick
Respondent
Before: Justice Marvin Kurz
Heard on: July 10, 2017
Reasons for Judgment released on: July 28, 2017
Counsel:
- Ms. C. Brett, for the Director
- Mr. Walter Garrick, on his own behalf
Judgment
KURZ J.:
Introduction
[1] The Director, Family Responsibility Office ("the Director") brings a default proceeding against Walter Garrick for his failure to honour the child support order of the Honourable Justice Sheila O'Connell dated October 27, 2015 ("the support order"). At that time O'Connell J. ordered that Mr. Garrick pay to Nancy Saporowski the sum of $782.00 per month for the support of their child, Wolf Garrick ("Wolf"). O'Connell J. fixed support arrears based on that monthly support figure.
[2] I later corrected the support order because of a typographical error. O'Connell J. imputed income to Mr. Garrick of $75,000.00 per month. At par. 334 of her reasons, O'Connell J. cited the correct figure for table support based on an annual income of $75,000.00 per annum, of $682.00 per month. But when O'Connell J. set out the support terms of her final order at par. 341(8), she inadvertently fixed the figure at $782.00 per month. I raised the issue with Mr. Garrick and counsel for the Director on February 29, 2016. On June 13, 2017, I made the correction to the support order under Rule 25(19)(b) of the Family Law Rules ("FLR") with the consent of both Mr. Garrick and Ms. Saporowski.
[3] The Director later realized that the order contains an incorrect amount for arrears, again because it was based on the $782.00 rather than the $682.00 per month figure. For this default hearing I will accept the Director's request that any order I make be based on the correct amount of total arrears arising from the $682.00 per month figure. As set out below, I calculate that figure at $55,005.00. I presume that one of Mr. Garrick and Ms. Saporowski will bring the appropriate motion in due course to change the term of the order under r. 25(19)(b).
[4] In this proceeding, the Director seeks a final default order against Mr. Garrick requiring him to be incarcerated forthwith for the maximum period allowed, 180 days, or until all of the arrears are paid.
[5] In the alternative, the Director seeks a two-part order for Mr. Garrick's incarceration. First, that he be incarcerated for 21 days (3 days for each of seven defaults) for his failure to fully honour my temporary default order of February 29, 2016. Second, the Director requests that Mr. Garrick be imprisoned for a further 159 days unless the balance of the arrears is paid within 30 days.
[6] My temporary default order was made on consent. It requires monthly payments of $682.00 per month commencing March 15, 2016. It calls for 3 days of imprisonment for each missed payment. Since then, 15 payments have become due, totaling $10,230.00. Mr. Garrick has paid $5,375.00 towards that figure, leaving him $4,855.00 in arrears. That is a default of over seven payments. The Director seeks 21 days of incarceration for the seven periods of default of the temporary default order or until $4,855.00 is paid.
Issues
[7] The issues in this proceeding are:
a. What amount of arrears does Mr. Garrick owe to Ms. Saporowski?
b. Has Mr. Garrick proven that he is unable to pay the arrears of support set out above or that he has valid reasons for his failure to do so?
c. What remedy if any should be imposed on Mr. Garrick?
Background
[8] The background to this matter is set out in great detail in the decision of O'Connell J. of October 27, 2015 that is the basis of this proceeding.
[9] In brief, Mr. Garrick and Ms. Saporowski cohabited for a period that began in the early 2000's. O'Connell J. found their relationship to have ended in August, 2006. They have one child, Wolf. Ms. Saporowski has an older child, Denzil, as well. Mr. Garrick previously acted as a step-parent to Denzil.
[10] In 2009 Ms. Saporowski brought an application against Mr. Garrick in which she sought custody of and support for Wolf. On December 22, 2009, Zisman J. granted a temporary order for the support of Wolf. She ordered Mr. Garrick to pay temporary without-prejudice child support of $1,000.00 per month, commencing January 1, 2010. This figure was based on an imputed annual income of $66,900.00. Zisman J.'s monthly support figure appears to be in error as the table support amount for an annual income of $66,900.00 is $638.00 per month. In her decision and the support order, O'Connell J. corrected this monthly support figure to one based on an imputed annual income of $75,000.00, under the Child Support Guidelines, subject to the typographical error set out above.
[11] On April 30, 2013, Justice Roslyn Zisman of this court granted the mother a final order for sole custody of Wolf. In her October 27, 2015 decision, O'Connell J. granted Mr. Garrick a final order of access to Wolf.
[12] Mr. Garrick has a serious criminal record for fraud; one that has already led him to spend a great deal of time in jail. That history was described in detail by O'Connell J. I include excerpts of that description below.
- Mr. Garrick has a lengthy history of being involved in conflict with the criminal justice system, dating back to 1994, mostly on fraud related charges. Mr. Garrick has been incarcerated for various periods of time as a result. Several of the charges have led to criminal convictions. Mr. Garrick was also incarcerated for contempt in a related civil proceeding in 2009 regarding one of the fraud related offenses.
49 It is not disputed that in 2008, Mr. Garrick was charged criminally with ten counts of fraud over $5000 and related theft by the Toronto police. The charges involved five complainants, and covered a three [year] period between February 16, 2004 and January 31, 2007. Around the same time, Mr. Garrick was charged by the Halton police with four counts of fraud over $5000 involving four complainants and covering a period of time between January and April 2007.
50 The charges led to considerably [sic] press coverage and notoriety for the father in both the Halton and Toronto media. Two of the five complainants in the Toronto charges were well known football celebrities. Three of the four complainants in Halton were the parents of school-friends of Denzil. The fourth charge involved Holy Trinity High School, where Denzil attended school and was a member of the football team.
56 Following very lengthy criminal trials in both of these matters, Mr. Garrick was convicted of three counts of fraud over $5000 with respect to the Halton charges. He was convicted of defrauding the parents of Denzil's friends or teammates, but not his high school. Mr. Garrick was convicted of four counts of fraud over $5000 with respect to the Toronto charges, including defrauding the two football icons and a doctor that treated Wolf at the Hospital for Sick Children.
57 On April 26, 2012, Mr. Justice Ricchetti sentenced Mr. Garrick to 23 months, to be served as a conditional sentence, less ten months of pre-sentence custody that he had already served. He also ordered three years of probation following his conditional sentence and that he make restitution to the victims in the amount of $159,000.
58 On March 26, 2013 Mr. Justice McCombs sentenced Mr. Garrick to 12 months of imprisonment. The indictment was endorsed to reflect the fact that Mr. Garrick served six months of pre-sentence custody, so the sentence was equivalent to 18 months. Justice McCombs ordered two years of probation following the custodial sentence.
62 In October of 2014, the Ontario Court of Appeal dismissed Mr. Garrick's appeal of the convictions and the sentence and Mr. Garrick was then returned to custody to serve a twelve month sentence.
64 In addition to the multiple and lengthy criminal proceedings, Mr. Garrick was sued by Dr. Rahim Valani, one of the victims in the Toronto criminal proceedings. Dr. Valani obtained a default judgment against Mr. Garrick in the amount of $123,000 on October 26, 2007. On July 16, 2009, Mr. Garrick was sentenced to three months of imprisonment for his contempt of court. The findings of contempt related to Mr. Garrick's repeated and persistent failure to respect court orders relating to the execution of the judgment.
67 As a result of the above history, it is not disputed that Mr. Garrick has spent a significant time in prison throughout Wolf's formative years after the parties separated. During the family trial, prior to being sentenced to a further 12 month custodial sentence after this trial, Mr. Garrick estimated that he had spent approximately 524 days in prison and over 1000 days of house arrest. Further, given Justice McCombs' final order that Mr. Garrick serve a consecutive jail term of two years in default of paying the fine of $172,000, there is a risk that he will be subject to further incarceration.
68 Mr. Garrick acknowledged during this trial that he is not paid any of the fines or restitution ordered by either of the criminal judges in the fraud matters, totaling more than $300,000.00.
[13] Mr. Garrick appealed the support order of O'Connell J. to the Superior Court of Justice. After many delays and extensions, Justice Michael R. Gibson of that court dismissed his appeal for delay. He found that Mr. Garrick had provided:
… a litany of excuses as to why the transcripts had not been filed and the appeal had not been perfected. He proffers more excuses today. I do not find them credible.
Mr. Garrick has been given multiple opportunities over the course of 11 months. To continue to allow him to drag this out would be abusive to Ms. Saporowski and it would be an abuse of the process of the court.
[14] On March 10, 2017 Justice Robert J. Sharpe of the Ontario Court of Appeal dismissed Mr. Garrick's appeal of that dismissal order. He stated that he saw no realistic prospect that Mr. Garrick would overturn Gibson J.'s findings against him.
Summary of Arguments
[15] Mr. Garrick says that he is unable to pay support as ordered by O'Connell J. He makes that argument for two reasons:
(a) He has been unable to obtain employment since his release from prison because of his criminal record and the notoriety that it has brought him; and
(b) O'Connell J. found that he has access to a trust fund, but that finding was erroneous.
[16] For her part, the Director argues that:
(a) The findings and order of O'Connell J. are presumptively correct;
(b) O'Connell J. actually considered Mr. Garrick's arguments and rejected them;
(c) It was open to Mr. Garrick to appeal those findings but his appeal was dismissed;
(d) Mr. Garrick has failed to rebut the presumption of his ability to pay support, meet his onus to prove a valid reason for his inability to honour the order, and to provide the required disclosure.
Issue No. 1: What Amount of Arrears Does Mr. Garrick Owe to Ms. Saporowski?
[17] This proceeding is governed by the Family Responsibility and Support Arrears Enforcement Act ("FRSAEA"). Under s. 41(9) of the FRSAEA, the Director's statement of arrears is presumed to be accurate for the period in which the order is filed with the Director's office. Here the amounts that accrue towards the arrears are not accurate because of the typographical (and attendant calculation) errors in O'Connell J.'s decision. But Mr. Garrick has provided no proof of any support payments other than those set out in the Director's statement of arrears.
[18] Further, the calculation of arrears itself, whether under the support order or my temporary default order is straightforward. It has not been challenged by Mr. Garrick other than his complaint about the error that transposed the monthly figure of $782.00 to $682.00. In this decision I am treating the support order, in terms of each of: retroactive support, arrears of support, and prospective support, as calling for a payment of $682.00 per month.
[19] Calculating the correct child support figure of $682.00 per month since the time of Zisman J.'s temporary support order, which was subsumed into O'Connell J.'s final order, Mr. Garrick should have paid support for 90 months, comprising January 2010- June, 2017. At $682.00 per month, he should have paid $61,300.00. He has actually paid $1,000.00 in 2010 (for which O'Connell J. gave him credit) and a further $5,375.00 since the time of my temporary default order, for a total of $6,375.00. He is therefore in arrears of $55,005.00 or just over 80 payments as of June 30, 2017.
[20] If one is calculating arrears of the February 29, 2016 temporary default order, 15 payments have become due, totaling $10,230.00. Mr. Garrick has paid $5,375.00 towards that figure, leaving him $4,855.00 in arrears of that order. That is over seven months of non-payments, as of June 30, 2017.
Issue No. 2: Has Mr. Garrick Proven That He Is Unable to Pay the Arrears of Support or That He Has Valid Reasons for His Failure to Do So?
Law Related to Proof of Inability to Pay Support
[21] The law places a strong onus on Mr. Garrick to prove that he is unable to pay the arrears of the support order or that he has valid reasons for not doing so. I find that he has failed to prove either for the five following reasons:
(1) Mr. Garrick has failed to rebut the presumption that the Director's statement of arrears accurately sets out his support payments;
(2) Mr. Garrick has failed to rebut the presumption of his ability to pay support arising from the support order;
(3) Mr. Garrick has failed to prove that he has a valid reason for his defaults;
(4) Mr. Garrick has failed to prove that he has accepted responsibility for his support obligation and put Wolf's needs before his own; and
(5) Mr. Garrick has failed to provide required disclosure.
[22] Under FRSAEA s. 41(1), when a support order filed with the Director is in default, the Director may require the payor to provide a financial statement, proof of income as set out in the applicable regulations, and appear before the court to explain the default.
[23] Under s. 15(1) of the applicable regulation, Ontario Regulation 167/97, under the FRSAEA, the payor must produce the following disclosure regarding his or her own income:
A copy of every personal income tax return filed by the payor with Canada Revenue Agency for the years determined under subsection (3), together with a copy of all material filed with each return, and a copy of every notice of assessment or re-assessment received for those years.
If the payor is an employee,
i. the three most recent statements of earnings indicating the payor's total earnings to date for the current calendar year, including overtime, or
ii. if the employer does not provide a statement described in subparagraph i, a letter from the employer setting out that information, including the annual rate of remuneration.
If the payor is self-employed,
i. the financial statements of the payor's business or professional practice, other than as a partner in a partnership, for the years determined under subsection (3), and
ii. statements for those years showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to or on behalf of persons or corporations with whom the payor does not deal at arm's length.
If the payor is a partner in a partnership, confirmation of the payor's income and draw from and capital in the partnership for the years determined under subsection (3).
If the payor controls a corporation,
i. the financial statements of the corporation and its subsidiaries for the years determined under subsection (3), and
ii. statements for those years showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to or on behalf of persons or corporations with whom the corporation or a related corporation does not deal at arm's length.
If the payor is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust's financial statements for the years determined under subsection (3).
If the payor receives income from a source other than the ones mentioned in paragraphs 2 to 6, including but not limited to employment insurance, social assistance, a pension, payments under the Workplace Safety and Insurance Act, 1997 and disability payments,
i. a statement from each applicable income source indicating the total amount received from that source during the current year, or
ii. if no statement described in subparagraph (i) is provided, a letter from the applicable income source setting out the required information.
Letters from the payor's sources of income other than employers of the payor, verifying the payor's income for the three consecutive payments made to the payor immediately before the date of the financial statement in Form 4.
Any other documents that are necessary to verify the income set out in the financial statement.
[24] Under s. 15(3) of O.Reg. 167/97:
(3) The information described in paragraphs 1, 3, 4, 5 and 6 of subsection (1) shall be provided,
(a) for each of the three most recent taxation years, if arrears have accrued during three or fewer taxation years; or
(b) for each taxation year during which arrears accrued, if arrears have accrued during more than three taxation years.
[25] Under r. 30 of the FLR, the payor, once served with a notice of default hearing must file a financial statement and notice of dispute within 10 days (r. 30(3)). Arrears are enforceable to the date of the hearing (r. 30(7)).
[26] The two key issues for a hearing are the amount owing and the payor's ability to pay the arrears and the ongoing support.
[27] A key provision of the FRSAEA sets out the presumptions that apply at a default hearing. Under s. 41(9),
… 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 [original support] order...
[28] Thus the onus is on the payor to prove that inability to pay. Under s. 41(10) that onus requires the payor to provide "valid reasons" for an inability to pay support arrears or subsequent payments.
[29] In Ontario (Director, Family Responsibility Office) v. Waller, 2015 ONCJ 656 at par. 44, Justice Stanley Sherr of this court summarized the contours of the onus that falls on the payor in a default hearing. There are three things that a payor must prove:
a. That he or she has a valid reason for non-payment. To be a valid reason, it must be one over which the payor has no control. It must render the payor "…without assets or income with which to meet his or her obligations, such as disabling illness or involuntary unemployment"
b. The payor must prove that he or she has accepted responsibility to pay child support and has placed the child's interests over his or her own; and
c. The payor must provide "frank disclosure" to the court, to allow it to consider the first two factors.
[30] Justice Carolyn Jones of this court further explored the notion of valid reasons for non-payment of child support in Ontario (Director, Family Responsibility Office) v. De Francesco, [2012] O.J. No. 6338 (OCJ). There she stated:
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."
[31] The court has a broad palate of remedies available when it finds that the payor has failed to pay support without a valid reason. FRSAEA s. 41(10) reads 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.
[32] As the Ontario Court of Appeal stated in Fischer v. Ontario (Director, Family Responsibility Office), 2008 ONCA 825:
Any one 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.
Mr. Garrick Has Failed to Rebut the Presumption That the Director's Statement of Arrears Accurately Sets Out His Support Payments
[33] I have set out above the amount of arrears accumulated and the few payments made by Mr. Garrick or on his behalf. The calculation of support owing is a straight mathematical calculation. The calculation of payments is set out in the Director's statement of arrears and presumptively correct. By my calculation, Mr. Garrick is $58,993.00 in arrears of child support payments. This encompasses over 86 missed payments since 2010.
[34] I note that in the sole financial statement that Mr. Garrick filed in this proceeding, sworn January 22, 2016, he stated that he owed $53,000 in support arrears (although he claimed that the monthly amount was $780.00 per month).
Mr. Garrick Has Failed to Rebut the Presumption of His Ability to Pay Support Arising from the Support Order
[35] O'Connell J. considered Mr. Garrick's ability to pay support in imputing income of $75,000.00 per year to him. She relied on the evidence of both Mr. Garrick and his father to find that he is the beneficiary of a trust that his grandfather had set up for him. She also found that he was able to earn income if he chose to work.
[36] O'Connell J. summarized the evidence of Mr. Garrick himself as to the scope of his trust fund at par. 322 of her decision as follows:
Mr. Garrick has given considerable evidence of an affluent lifestyle, no doubt partially funded by his parents, but it appears also as a beneficiary of this trust fund. It also appears that Mr. Garrick has significant access to funds. He testified that he has spent between [$]500,000 and [$]600,000 in legal fees in his criminal matters, although his father testified that he has only provided $200,000.00 towards Mr. Garrick's legal fees.
[37] Earlier in her decision O'Connell J. referred to this testimony of Mr. Garrick regarding his use of the proceeds of the trust:
87 Mr. Garrick testified that he is the beneficiary of a trust fund set up by his grandfather. His grandfather paid for his Columbia school education. He testified that when he attended Columbia University, he started in the pre-med program with the intention of becoming a doctor, having obtained very high marks prior to admission.
88 However, Mr. Garrick testified that he decided to invest the money that he received from his grandfather for his education in the stock market instead. He testified that in the early nineties, he made quite a bit of money on the stock market, estimating millions. As a result, he left school and decided to continue investing in the stock market, where he was very successful. Initially, he did not tell his parents or his grandfather that he had dropped out of Columbia.
89 Mr. Garrick also testified that he purchased a penthouse apartment in New York through the family trust in 1998. The apartment is worth approximately $1.8 million.
[38] O'Connell J. also relied on the evidence of Mr. Garrick's father, Wilfred Garrick, which confirmed the existence of the trust fund. O'Connell J. wrote:
208 Wilfrid Garrick also acknowledged that there is a trust fund set up by his father for Mr. Garrick. He testified that both he and his son have access to this trust fund. He further testified that the money from the trust fund was actually supporting Mr. Garrick and Ms. Saporowski when they were together. He testified that they both benefited from this trust fund.
209 When asked directly by the court, Wilfrid Garrick testified that the trust fund set up by his father is only in Walter Garrick's name.
[39] Mr. Garrick argued before me, absent any objective confirmatory evidence, that he never had a trust fund. He claimed that O'Connell J. misunderstood his evidence. Yet, he had the opportunity to appeal that decision. That appeal was dismissed because Mr. Garrick failed to prosecute it. O'Connell J.'s decision is binding.
[40] With regard to his ability to earn income, O'Connell J. found that Mr. Garrick is capable of finding employment. She cited Mr. Garrick's argument as follows:
14 The father submits that he was unable to pay child support while incarcerated and due to the very strict bail conditions upon earlier releases, he was unable to work or maintain employment at the time the temporary order for child support was made. He also states that it is virtually impossible for him to obtain employment after his last release from incarceration without identity documents and because of all of the media attention his cases has garnered, not to mention a lengthy criminal record.
15 The father states that his current plan is to return to school or to seek employment and that he is in not able to pay any child support or arrears at this time.
[41] O'Connell J. rejected that argument, stating:
332 Currently, Mr. Garrick is not incarcerated. There are no restrictions on his ability to obtain employment. According to Mr. Garrick and his sister, who assisted him, he obtained his identification documents for employment purposes. Mr. Garrick is a highly intelligent, articulate, capable, healthy, educated and able-bodied person. Despite his criminal record, he is capable of finding some employment given his legal obligation to pay child support, in addition to the trust income that he received.
[42] Thus I am left with findings that are binding upon Mr. Garrick and a presumption that he has failed to rebut.
Mr. Garrick Has Failed to Prove That He Has a Valid Reason for His Defaults
[43] Not only has Mr. Garrick failed to overcome the presumption of his ability to honour the order, he has failed to provide evidence that he has a valid reason for his inability to pay.
[44] Other than the absence of a trust fund, Mr. Garrick's justification for his failure to honour the support order is that his incarceration makes him unable to work or earn any income. However Mr. Garrick has not provided a shred of evidence other than his word and that of his father to support this claim.
[45] Mr. Garrick called his father, Wilfred Garrick to attempt to confirm his claim of non-employability. While Wilfred Garrick agreed with him, neither of them offered any real evidence. They simply offered their opinion regarding the effect of the publicity generated by Mr. Garrick's criminal proceedings on his employment prospects. Mr. Garrick offered no copies of rejection letters, no list of employers to whom he applied, nor any evidence from an expert in the employment field.
[46] The main reason that Mr. Garrick's argument is not credible is the fact that he never put his opinion to the test. As he testified, he has not applied for a job since "the late 2000's"; i.e. since the period between 2000 and 2010. In other words he has not applied for a job since 2010, and certainly since O'Connell J. made the support order. Mr. Garrick's failure to apply for a job delivers a mortal blow to his claim that he is unemployable.
[47] Equally important, O'Connell J. considered and rejected the same argument. As Justice Adriana Doyle of the Superior Court of Justice pointed out in Ontario (Director, Family Responsibility Office) v. Vilfort, [2016] O.J. No. 6217 (SCJ), it is not open to Mr. Garrick to rely on the same evidence he offered to O'Connell J. As Doyle J. wrote:
Evidence from the payor that pre-dates the default hearing, unless it was "reasonably unforeseeable", is not admissible at a motion for a warrant of committal. Only evidence arising after the default hearing, which establishes a material change in circumstances going to the debtor's ability to pay, will be considered by the court.
[48] Further, as the Director's counsel has pointed out, Mr. Garrick's arguments are similar to those of the payor in Ontario (Director, Family Responsibility Office) v. Labrash, [2002] O.J. No. 140 (OCJ). There, Justice Peter T. Bishop of this court completely rejected the incarceration argument, stating:
13 In the case at hand, Mr. Labrash's loss of licence occurred as a result of his choice to drive while impaired. He is not remorseful and he has never paid any support voluntarily. The fact that Mr. Labrash now comes before the court declaring that he is impecunious does not relieve him of his child support obligations, when he deliberately refused to comply earlier. He is simply attempting to avoid his responsibility as he has since separation for the support of this child. He chose to drink and drive and must face the consequences of a licence prohibition. As well, he has taken no meaningful steps to obtain employment since August of 2001, when he clearly has skills in that regard.
[49] Here Mr. Garrick has offered no credible evidence in this hearing to gainsay O'Connell J.'s finding. I add that Mr. Garrick is very much the author of his own misfortune, as it were: he chose to commit the crimes that led to his imprisonment. He has done nothing to attempt to earn an income since his release from jail, despite his manifest talents. His argument deserves the same response that Bishop J. offered to Mr. Labrash.
Mr. Garrick Has Failed to Prove That He Has Accepted Responsibility for His Support Obligations and Put Wolf's Needs Before His Own
[50] As set out above, a payor in a default proceeding has the onus of proving that he or she has accepted responsibility to pay child support and has placed the child's interests over his or her own. Mr. Garrick has provided no evidence of having done anything of the sort.
[51] Mr. Garrick and his father gave evidence of his family doing much to assist Wolf financially by paying for things that they chose. Yet none of that largesse went towards paying child support, which is intended to meet Wolf's basic needs. Mr. Garrick explained his family's rationale by expounded on his generosity to Ms. Saporowski when they were together, her present means and Wolf's alleged lack of needs. Whatever material benefits Mr. Garrick's family chooses to offer directly to Wolf, it does not take relieve him of his support obligations under the support order.
[52] Mr. Garrick's family has no obligation to meet his child support obligation. They can spend their money on Wolf as they see fit (and Ms. Saporowski allows). Yet it is hard to ignore the notion that Mr. Garrick has control over those expenditures and would be able to turn on the tap if he were so inclined.
[53] I say this because of the following comments in O'Connell J.'s decision:
324 It was clear from the testimony of both Mr. Garrick and Wilfrid Garrick that Mr. Garrick would be prepared to pay for Wolf's private school education but for the mother's position with respect to access and their view of her unreasonableness. It was further clear that Mr. Garrick [sic] sister was under the mistaken impression that her brother was already paying for a private school education for Wolf.
325 It was also very clear that although Mr. Garrick and his parents stated repeatedly that they would do anything for Wolf and pay for his clothing, his extracurricular activities, and his private school education, Mr. Garrick clearly drew the line at paying Guideline child support to Wolf's mother despite evidence of an ability to do so through his trust fund or other sources.
[54] In any event, whatever O'Connell J. found, Mr. Garrick has not provided a scintilla of evidence to this court which demonstrates that he has accepted his responsibility to pay child support or put his son's needs before his own.
Mr. Garrick Has Failed to Provide Required Disclosure
[55] Not only does Mr. Garrick have the onus of proof set out above, he has a broad disclosure obligation to the Director to support his claims. He has utterly failed to meet this obligation. In fact, other than filing two separate disputes and one sworn financial statement since this proceeding began, Mr. Garrick has offered the court no evidence but his word and the confirming opinion of his father as to his employability. He has offered no disclosure but that financial statement, which was unaccompanied by any tax returns or notices of assessment.
[56] In other words, despite his broad disclosure obligation, Mr. Garrick offers nothing but his word, sworn to once over the 4½ years since this default proceeding began.
[57] In his lone financial statement, sworn January 22, 2016, Mr. Garrick fails to fill in many expenses. But he does claim $1,000.00 per month in clothing, health care and tobacco, far more than his monthly support obligation. He claims to spend $500.00 per month on entertainment and recreation. He claims debts totaling $395,000.00 to his parents and Garredelia Garrick, but no proof of the debt. None of the money purportedly borrowed from his relatives to pay his expenses was allocated towards support.
[58] These facts fit in with a pattern of non-disclosure cited by O'Connell J. at his earlier trial as follows:
271 Despite repeatedly advising the court and Ms. Saporowski during his cross-examination that he would tender documentary proof, transcripts, numerous recordings or witnesses (such as the 'nanny') that would contradict Ms. Saporowski's testimony and corroborate his own, none of this evidence ever materialized. The one recording that the father played at the conclusion of trial was taken when Wolf appeared to be approximately 18 months old and was not very helpful to the father's case.
and
322 Throughout these proceedings Mr. Garrick has never provided any financial disclosure with respect to this trust fund. It has not been disclosed any of his financial statements sworn in these proceedings. Mr. Garrick has given considerable evidence of an affluent lifestyle, no doubt partially funded by his parents, but it appears also as a beneficiary of this trust fund. It also appears that Mr. Garrick has significant access to funds. He testified that he has spent between 500,000 and 600,000 in legal fees in his criminal matters, although his father testified that he has only provided $200,000.00 towards Mr. Garrick's legal fees.
[59] Mr. Garrick's failure to provide any meaningful disclosure is another reason to find that he has failed to overcome the presumption of his ability to pay or proven that he has a valid reason for his defaults in payment.
Conclusion Re Presumption and Valid Reason
[60] In conclusion, Mr. Garrick has failed by a large margin to overcome the presumption of his ability to pay. He has equally failed to show a valid reason for his inability to pay support.
Issue No. 3: What Remedy If Any Should Be Imposed on Mr. Garrick?
[61] The Director asks that I order the imprisonment of Mr. Garrick for 180 days for his years of default under the support order. The Director relies on ss. 41(10)(h) and (i) of the FRSAEA, which are cited above. The period of incarceration that the Director seeks is the maximum period allowed under those provisions. That would amount to less than the 3 days incarceration per default that the Director otherwise requests. Mr. Garrick has had more than 80 payment defaults.
[62] In the alternative, the Director requests that I order 21 days of imprisonment for the 7+ defaults of my temporary default order.
[63] The Director speaks of the societal importance of enforcing child support orders, which cannot be done unless there is an effective form of enforcement. As Justice John Laskin wrote for the Ontario Court of Appeal in McLarty v. Ontario (Director, Family Responsibility Office), [2001] O.J. No. 707 (OCA) at par. 21:
I recognize that the Act underscores an important legislative, and indeed societal objective: to ensure that support obligations are honoured. To achieve that objective, the legislation requires an effective enforcement regime, or as counsel for the Director submitted during oral argument, it must be given teeth. [emphasis added]
[64] Those extra teeth come in part from a 2005 amendment to the FRSAEA that raised the maximum jail sentence from 90 to 180 days. Further, as Justice Douglas K. Gray of the Superior Court of Justice pointed out in Ontario (Director, Family Responsibility Office) v. Kilpatrick, [2008] O.J. No. 3826 (SCJ) at par. 42, the requirement that the court first consider alternatives to incarceration, found in the old Family Law Reform Act, no longer applies under the FRSAEA.
[65] That being said, jail sentences are intended to compel compliance, not to punish the defaulting payor. Jail sentences are to be used as a last resort (see Ontario (Director, Family Responsibility Office) v. Belic, [2006] O.J. No. 2730 (OSCJ)).
[66] This theme is articulated by the Ontario Court of Appeal in Fischer v. Ontario (Director, Family Responsibility Office), cited above. As the court wrote:
[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.
[67] Mendes Da Costa J. succinctly expounded on this theme in Re Allen and Morrison, 56 O.R. (2d) 671 (Ont. Dist. Ct.) (upheld:, [1988] O.J. No. 30 (Div. Ct.)) when he wrote:
As courts have stated, the days of the debtors' prison are long gone, and the basis of the incarceration provision is the debtor's contemptuous behaviour in willfully violating a court order. For this reason, it seems to me that the retention of imprisonment has been grounded, at least in large measure, on the premise that the debtor 'carries the keys of the prison in his own pocket'. [emphasis added]
[68] O'Connell J. found that Mr. Garrick had and continues to have the ability to pay support but had chosen for his own reasons not to do so. In this proceeding, Mr. Garrick has done nothing to rebut the presumption of his continuing ability to pay, failed to prove a valid reason for his defaults and failed to meet his duty to offer fulsome disclosure. As the Director has pointedly stated, the only payments that Mr. Garrick has made in the last two years have come when he has faced incarceration.
[69] In his argument, Mr. Garrick asked me not to send him to jail, because jailing him would be inappropriate. He spoke of his frightening experiences while previously incarcerated. He spoke of concerns about the high rate of incarceration for African Canadians.
[70] I have considered all of those submissions. But the court must conclude that this is a textbook case of a payor arranging his affairs in order to avoid paying the support that he has been found to be capable of paying. Mr. Garrick has carried the metaphorical keys of his prison in his pocket. If he is incarcerated, he has, for reasons of his own, chosen to lock himself in.
[71] This case concerns Mr. Garrick and his rights, but it also concerns the right of his son to be supported and society to insist upon that support being paid.
[72] In Belec, Greer J. considered the balancing of rights of the payor on the one hand and society as a whole in ensuring that children are supported by those who have a legal obligation to do so on the other. She stated:
27 The balance, in my view, favours the Director who represents the public interest in seeing that child support Orders are obeyed. The rights of the children to whom the support is to benefit, are ignored by the Payors whose legal obligation it is to provide support for their own children. The overall cost to society outweighs that of the individual who has been given opportunities to explain why payment has not been made. The processes of justice, which are in the public interest, should not in my view, be defeated by the wilful default of the payor parent.
[73] Greer J. also pointed out that the payor requires no greater notice of the potential of incarceration than the notice of default. That being said, the hearing of this default proceeding represented the 26th attendance on this proceeding since the Notice of Default Hearing was served on Mr. Garrick on December 10, 2012.
[74] Mr. Garrick was well aware of the possibility of his imprisonment well before this hearing commenced. It was raised in the Director's notice of default and in numerous court attendances. One such attendance occurred on February 29, 2016. That is when I made my consent temporary default order, which specifically spoke to three days of imprisonment for each default.
[75] This proceeding was adjourned 25 times in the past, mainly as Mr. Garrick's appeals have wound their way through the system. They have now been conclusively dismissed.
Term of Warrant of Committal
[76] Although the court need not consider any alternatives to incarceration, Mr. Garrick has nonetheless left the court with no alternative but a warrant of committal. He has spent over seven years avoiding his support obligation to his son. The court recalls that the purpose of the incarceration remedy under the FRSAEA is compliance, not punishment. But Mr. Garrick has offered almost no disclosure that would allow for any other form of enforcement. Thus he offers no other alternative but incarceration. Again, the keys to the jailhouse door reside in Mr. Garrick's pocket.
[77] In Kirshenblatt v. Ontario (Director, Family Responsibility Office), 1999 CarswellOnt. 4265 (SCJ), Justice MacKinnon of the Superior Court of Justice reduced a 90-day sentence of incarceration to 45 days on appeal. MacKinnon J. stated at par. 9 that "the imprisonment maximum should be reserved for the most seriously contemptuous behaviour".
[78] It should be recalled that the original 90-day period of incarceration was the maximum available at the time. In 2005 the Ontario Legislature doubled the penalty from 90 to 180 days (2005 S.O., c. 16, s. 24), reflecting a societal view of the need for stronger teeth to deal with deliberate non-payment of support.
[79] In Ontario (Director, Family Responsibility Office) v. Kilpatrick, Gray J. partially disagreed with his colleague, MacKinnon J. He stated that he did "… not necessarily agree with [the] characterization…" that the 180-day maximum sentence is reserved for the most seriously contemptuous cases. He offered the following caveat that moderated the test for a maximum sentence from "most" to "more" serious, as follows:
However, I agree that the fact that the legislature has provided for a maximum term of imprisonment must mean that the legislature has contemplated a range of imprisonment options. A term of imprisonment of 180 days is obviously to be reserved for cases that are more serious rather than less.
[80] Gray J. suggested that a maximum penalty should not be imposed the first time that there is a final default hearing. He noted that imprisonment does not expunge support arrears. So the court is free to impose a greater penalty the next time. He felt that the option of escalating penalties is lost when the maximum is imposed the first time.
[81] Here we are faced with a case that sits at what Gray J. would characterize as the serious end of the scale. Mr. Garrick has failed to honour both the support order and my temporary default order. He has made only a few payments over seven-and-a-half years, most of them when faced with the jailhouse door. His payments have amounted to less than 10% of the amount that he should have paid. He has managed to delay this hearing for years with bootless appeals. He claims to be unable to work but has taken no steps to seek employment, leaving himself deliberately unemployed. He has known that this day is coming, but has not prepared for it. In short, he has taken very few steps to resolve his arrears.
[82] That being said, I also consider Gray J.'s words regarding the wisdom of keeping the maximum option available for subsequent default attendances, allowing for escalating sentences if the court's message is not received. Prison is always a serious consequence for non-criminal behavior.
[83] With regard to the actual penalties, the cases set out above offer little guidance. In Kilpatrick, Gray J. found that he was "…unable to say that this case approaches the most serious case that would justify the maximum penalty." So he imposed a 60-day sentence, representing 1/3 of the maximum. In Kirshenblatt, MacKinnon J. found that the payor's prioritizing of his second family and mortgaging the family home to disburse funds to creditors other than his former spouse did not meet the "very high degree of contempt" required for a maximum sentence. Instead MacKinnon J. sentenced the payor to ½ of the maximum.
[84] Here Mr. Garrick's refusal to honour the support order does not warrant the maximum on a first default hearing. But, considering the factors cited above, including the delays in this proceeding that Mr. Garrick has used to his advantage, the amount in question, the fact that he has made virtually no attempts to honour the support order, and that he only partially honoured the temporary default order when faced with incarceration, his defaults are sufficiently serious that they warrant a significant period of jail time.
[85] The Director asks me to make two separate orders, one for the failure to honour my temporary default order and another for the numerous defaults of the support order. She has provided me with no authorities to show that I can make two orders of imprisonment at the conclusion of one hearing. Further there is overlap between the two proceedings and orders. On an abundance of caution, I make one order at this time.
[86] A period of 90 days in prison is one-half of the maximum called for under the FRSAEA. I note that on February 29, 2016, Mr. Garrick consented to an order that he be committed to three days of jail for each default. A 90-day sentence represents just a fraction of that calculation, considering that there are approximately 80 defaults of payment under the support order.
[87] In light of that fact and the factors set out above, this being a serious but not the most serious case, the need to reflect society's interest on supporting our children, and the utility of escalating sentences for default of support, an order of 90 days imprisonment at this time is appropriate.
[88] For future defaults, now that Mr. Garrick is aware of my findings above and this decision, the three days of incarceration in the event of default term that he agreed to about a year and a half ago seems appropriate.
Order
[89] In the circumstances, I make an order as follows:
a. A warrant of committal shall issue forthwith for Mr. Garrick's immediate incarceration for 90 days or until the balance of the arrears owing under the support order based on a monthly payment of $682.00 per month, $55,005.00 as of June 30, 2017, is paid.
b. Mr. Garrick shall pay his ongoing support of $682.00 per month commencing July 1, 2017, failing which he be committed to jail for 3 days for each and every default.
[90] I may be spoken to as to the costs of this proceeding.
Released: July 28, 2017
Signed: Justice Marvin Kurz