McLarty v. Director, Family Responsibility Office for the benefit of Sylvie Langlois [Indexed as: McLarty v. Ontario (Director, Family Responsibility Office)]

53 O.R. (3d) 161

[2001] O.J. No. 707

Docket No. C34029

Court of Appeal for Ontario

Weiler, Laskin and Charron JJ.A.

March 5, 2001

Family law--Support--Enforcement--Court has no jurisdiction to make refraining order outside 30-day period referred to in First Notice of intention to suspend defaulting payor's driver's licence--Family Responsibility Office required to prove service of First Notice where defaulting payor disputes service--Motions judge erred in ordering Family Responsibility Office to withdraw any federal licence denial application in respect of defaulting payor where defaulting payor was properly served with notice of Family Responsibility Office's intention to make application and where payor did not comply with requirements of s. 67(3)(c)(iv) of Family Orders and Agreements Enforcement Assistance Act--Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4, s. 67(3)(c)(iv).

The applicant was in default under a child support order. The Family Responsibility Office ("FRO") sent him notice under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 that unless he cured his default within 30 days, his driver's licence might be suspended. The applicant claimed that he never received that notice because he had moved from the address to which it was sent. His driver's licence was suspended. The FRO subsequently put the applicant on notice under the Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 that it would apply to the federal government to have his existing federal licences suspended and any new federal licences denied to him. He acknowledged having received that notice. He brought an application to reinstate his driver's licence. The motions judge issued a refraining order against the Director; ordered that the refraining order would be terminated unless the applicant applied to vary his current child support order within 20 days; ordered that the suspension of the applicant's driver's licence be lifted pending the determination of his variation application or the termination of the refraining order; and ordered the FRO to withdraw any federal licence denial application pending the determination of the variation application or the termination of the refraining order. The Director appealed.

Held, the appeal should be allowed in part.

The motions judge did not have jurisdiction to make the refraining order. Section 35(3) of the Family Responsibility and Support Arrears Enforcement Act provides that the court shall not make a refraining order after the 30-day period referred to in the First Notice. The Act does not give the court any power to extend that time period. The order to refrain in this case was made over two-and-a-half months after the 30-day period ended.

The Director's statutory authority to direct the suspension of a payor's licence depends on serving the payor with a First Notice under s. 34 of the Act. When a payor disputes service, as the applicant did, the Director has an obligation to prove service. If the Director fails to do so, the driver's licence suspension cannot stand. The Director did not file any evidence of the address shown in the records of the Director and of the Registrar of Motor Vehicles or of service of the notice. Because the FRO did not file proof of service, the Director could not maintain the suspension of the applicant's licence. Accordingly, while the refraining order should be set aside, the Director should be ordered to reinstate the applicant's driver's licence.

Under s. 67(1) of the Family Orders and Agreements Enforcement Assistance Act, the FRO may make a federal licence denial application where a person is in persistent arrears under a support order. The applicant acknowledged that he received notice of the Director's intention to make such an application. While the Director submitted, relying on s. 71 of the Family Orders and Agreements Enforcement Assistance Act, that the motions judge did not have jurisdiction to make an order that the FRO withdraw the federal licence denial application, s. 71 did not assist the Director. That section prohibits an appeal from "any action taken under this Part", not a motion or an application. However, assuming that the motions judge had jurisdiction to make an order that the FRO withdraw any federal licence denial application, he had no grounds to make that order. The notice required by s. 67(3)(c) was properly served. If the applicant wanted to prevent the application from being made under s. 67(3)(c)(iv), either he had to enter into an acceptable payment plan or he had to satisfy the FRO that he could not pay the arrears and that the licence denial application would not be reasonable. He did neither. Therefore, the motions judge erred in ordering the FRO to withdraw any federal licence denial application.

APPEAL from an order lifting a suspension of the applicant's driver's licence and ordering the Family Responsibility Office to refrain from directing a suspension of the applicant's driver's licence and to withdraw any application to suspend the applicant's federal licences.

Cases referred to Ivan's Films Inc. v. Kostelac (1989), 29 C.P.C. (2d) 20 (Master); Kasprzak v. Ontario (Family Responsibility Office, Director), [1999] O.J. No. 3485 (C.A.) Statutes referred to Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 (2nd Supp.), ss. 67, 69(2), 70, 71, 72(1) Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, ss. 19, 34, 35, 38(1) Rules and regulations referred to O. Reg. 359/97, s. 17.1 (Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31) O. Reg. 167/97, s. 17(3) (Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31) O. Reg. 340/94, s. 33(1) (Highway Traffic Act, R.S.O. 1990, c. H.8)

Ian M. McLarty, respondent in person. Melanie Herbin, for appellant.

The judgment of the court was delivered by

[1] LASKIN J.A.:--Under the provincial Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 persons who do not pay a support order may have their driver's licence suspended. Under the federal Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 (2nd Supp.) defaulting payors may have their application for a federal licence, including a passport, denied and their existing federal licences suspended.

[2] The respondent, Ian McLarty, has not complied with a child support order. On November 15, 1999, the Family Responsibility Office ("FRO") put him on notice that unless he cured his default within 30 days, his driver's licence may be suspended. Mr. McLarty claims that he never received the notice. Nevertheless, on February 2, 2000, his driver's licence was suspended.

[3] On February 10, 2000, the FRO put Mr. McLarty on notice that it would apply to the federal government to have his existing federal licences suspended and any new federal licences denied to him. He acknowledges having received this notice, and he applied to the court for relief. On March 10, 2000, the motions judge, Sedgwick J., lifted the suspension of Mr. McLarty's driver's licence. He also ordered the Director of the FRO to refrain from directing the suspension of Mr. McLarty's driver's licence and to withdraw any application to suspend his federal licences. The Director appeals. The Director submits that the motions judge had no jurisdiction to lift the licence suspension and make an order to refrain beyond the 30-day period referred to in the notice, and that he erred in ordering any federal licence denial application to be withdrawn.

Background Facts

[4] On September 29, 1998, Mr. McLarty was ordered to pay Sylvie Langlois $307 per month for the support of his three children. The order provided that the support payments were to be enforced by the Director of the FRO. The support order was filed with the Director in October 1998. Since then, Mr. McLarty has been in default. By November 1999, the arrears amounted to $3,938.60. The FRO decided to begin enforcement proceedings.

[5] On November 15, 1999, the FRO sent Mr. McLarty a First Notice under the provincial statute informing him that unless he paid the arrears or entered into a repayment plan agreement or obtained a refraining order from the court by December 22, 1999, the Director would direct the Registrar of Motor Vehicles to suspend his driver's licence. Mr. McLarty, however, did nothing. He contended on appeal, as he did before the motions judge, that he did not receive the First Notice. That notice was sent to him at 9-221 Seventh Street West in Cornwall, Ontario. In oral submissions to this court, Mr. McLarty said that he moved from that address to his present address, 648 York Street in Cornwall, in mid-August 1999, three months before the delivery of the First Notice. In answer to this submission, counsel for the Director claimed that Mr. McLarty did not file a change of address either with the FRO or the Registrar of Motor Vehicles until November 26, 1999. However, no evidence was filed to support the Director's claim.

[6] Because Mr. McLarty took no steps to cure his default or obtain a refraining order before December 22, 1999, the Director directed the Registrar of Motor Vehicles to suspend his driver's licence. His licence was suspended on February 2, 2000. By February 10, 2000, Mr. McLarty owed $4,859.60 for child support. The FRO sent him written notice that unless he paid all arrears or entered into a repayment plan agreement within 40 days, it intended to apply to the federal government requesting that he be denied all federal licences. This notice was sent to 648 York Street and Mr. McLarty acknowledges having received it.

[7] On May 8, Mr. McLarty brought a motion to reinstate his driver's licence, and to cancel his child support and arrears. In his supporting affidavit, he said that on February 14, 2000 he was stopped by the police and told that his driver's licence was suspended. He also claimed that he was poor and unable to support his children. On the motion, the Director did not file proof of service of the First Notice, the November 15, 1999 letter.

[8] Sedgwick J. granted Mr. McLarty relief. He made four orders:

(1) he issued a refraining order against the Director;

(2) he ordered that the refraining order would be terminated unless Mr. McLarty applied to vary his current child support order within 20 days;

(3) he ordered that the suspension of Mr. McLarty's driver's licence be lifted pending the determination of his variation application or the termination of the refraining order; and

(4) he ordered the FRO to withdraw any federal licence denial application pending the determination of the variation application or the termination of the refraining order.

He gave no written reasons for his decision.

Discussion

First issue: Did the motions judge have jurisdiction to make a refraining order?

[9] I begin my discussion of this issue by briefly describing the detailed legislative regime.

[10] The suspension of a defaulting payor's driver's licence is one means by which the FRO enforces support orders. Before a driver's licence may be suspended, the Director must serve a First Notice on the defaulting payor. The First Notice gives the payor 30 days to cure the default or obtain a refraining order. Section 34 of the provincial legislation sets out the requirement for a First Notice:

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.

[11] Under s. 35(1) of the Act, a payor who receives a First Notice may, on an application to vary the support order, move for a refraining order -- an order that the Director refrain from directing the suspension of the payor's driver's licence. Under s. 35(10), an order to refrain ends six months after it is made or when the application to vary is decided or when the support order is withdrawn, whichever is earlier. Although the Act contemplates that the application to vary and the motion for a refraining order will typically be brought together, under s. 35(11) an application to vary can be brought 20 days after an order to refrain is made.

[12] Section 35(3) of the provincial statute, which is central to the Director's appeal, provides that the court shall not make a refraining order after the 30-day period referred to in the First Notice:

35(3) Time limits and variation -- A court shall not make an order to refrain after the 30-day period referred to in the first notice, but an order to refrain may be varied, on motion by the payor or the Director, at any time before the application to vary support is determined if there is a material change in the payor's circumstances.

[13] If the payor has not paid the support arrears, made a satisfactory arrangement to do so, or obtained an order to refrain within the 30-day period, then under s. 37(1) of the provincial Act, the Director may direct the Registrar of Motor Vehicles to suspend the payor's driver's licence. A suspended driver's licence may be reinstated only if the payor satisfactorily deals with the support arrears or the support order is withdrawn. Section 38(1) provides for reinstatement:

38(1) Direction to reinstate -- The Director shall direct the Registrar of Motor Vehicles to reinstate a driver's licence suspended as a result of a direction under section 37 if,

(a) the payor pays all the arrears owing under the support order;

(b) the payor is complying with the terms of the arrangement made with the Director in response to the first notice;

(c) the payor is complying with the terms of the support order as well as the terms of any order under section 35 or 41 that relates to the support order;

(d) the payor makes an arrangement satisfactory to the Director for complying with the support order; or

(e) the support order is withdrawn under section 16.

[14] I now turn to the crux of the Director's appeal. Relying on s. 35(3) of the Act, the Director submits that the motions judge had no jurisdiction to make a refraining order because the order was made outside the 30-day period referred to in the First Notice. The First Notice was sent by ordinary mail on November 15, 1999 and stated that the 30-day period ended on December 22, 1999. The order to refrain was made on March 10, 2000, over two-and-a-half months after the 30-day period ended.

[15] I agree with the Director's submission. A court has no jurisdiction to make a refraining order outside the 30-day period. Section 35(3) specifies the time period within which a refraining order may be made. The statute does not give the court any power to extend that time period. As Labrosse J.A. said in Kasprzak v. Ontario (Family Responsibility Office, Director), [1999] O.J. No. 3485 (C.A.): "In s. 35(3) the Act is very specific that a court shall not make an order to refrain after the 30 day period referred to in the First Notice. In our view the Act means what it says and a restraining order cannot be made outside the 30 day period."

[16] However, my conclusion that the motions judge had no jurisdiction to make a refraining order does not determine this part of the appeal. The Director's statutory authority to direct the suspension of a payor's driver's licence depends on serving the payor with a First Notice under s. 34. And Mr. McLarty submits that he was not served with, or at least did not receive the First Notice. In my view, when a payor disputes service, the Director has an obligation to prove service. If the Director fails to do so, the driver's licence suspension cannot stand.

[17] Service of a First Notice is governed by s. 17.1 of regulation 359/97 made under the provincial Act. Service must be made by ordinary mail to the payor's most recent address in the records of the Director and of the Registrar of Motor Vehicles if the addresses are different. Section 17.1 provides:

17.1 Service of a notice under Part V of the Act on a payor must be made by ordinary mail,

(a) addressed to the payor at his or her most recent address as shown in the records in the Director's office; and

(b) addressed to the payor at his or her most recent address as shown in the records of the Registrar of Motor Vehicles, if this address is different than the address described in clause (a).

Under s. 17(3) of regulation 167/97, service is deemed to have been made five days after the date of service:

17(3) Service by ordinary mail on a payor, recipient or income source shall be deemed to have been made five days after the date of service as determined under the Rules of Civil Procedure made under the Courts of Justice Act.

[18] From the material filed before the motions judge, I gather that Mr. McLarty did not receive the First Notice sent to his address on Seventh Street because he had moved to the York Street address. On the appeal, counsel for the Director submitted that when the First Notice was sent, both the records of the Director and of the Registrar of Motor Vehicles showed his old address. The Director's counsel contended that Mr. McLarty simply failed to notify either office of his change of address. As I said earlier, however, the Director did not file any evidence of the address shown in these records or of service of the notice, either before the motions judge or before this court.

[19] Unquestionably, the payor of a support order has the obligation to advise the Director of a change of address. This obligation is spelled out in s. 19 of the provincial Act:

19. If a payor or recipient under a support order or support deduction order filed in the Director's office changes address, he or she shall advise the Director of the new address within 10 days of the change.

Section 33(1) of regulation 340/94 under the Highway Traffic Act, R.S.O. 1990, c. H.8 imposes a similar obligation on the holder of a driver's licence to notify the Registrar of Motor Vehicles of a change of address within six days of the change.

[20] Therefore, if Mr. McLarty had failed to advise either the Director or the Registrar of his new address by the time the First Notice was sent, the FRO could not be faulted for serving Mr. McLarty at his old address. Service under the statute would still be valid. However, when a payor disputes service, the Director is obliged to prove service. The Director must file affidavit evidence that the First Notice was sent to the payor by ordinary mail to the payor's most recent address in the records of the Director and, if different, to the payor's most recent address in the records of the Registrar of Motor Vehicles, as is required by s. 17.1 of the regulation. In this case, even though Mr. McLarty claimed that he had not been served, the FRO filed no proof of service on the application before Sedgwick J. Because the FRO did not file proof of service, the Director cannot maintain the suspension of Mr. McLarty's driver's licence. Requiring the FRO to prove service when a defaulting payor disputes service is consistent with the case law under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requiring a plaintiff to prove service of an originating process when a defendant disputes service. See Ivan's Films Inc. v. Kostelac (1989), 29 C.P.C. (2d) 20 (Master).

[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. One way to do this is to suspend the driver's licences of persons who do not pay support orders. In some cases, however, suspending a person's driver's licence may work a serious hardship. Thus, if the Director is going to rely on the sanction of suspension, the Director must show compliance with the procedural steps leading to suspension. The Director has not done so in this case.

[22] Although I would set aside the refraining order, I would also order the Director to direct the Registrar of Motor Vehicles to reinstate Mr. McLarty's driver's licence. If the Director wishes to suspend Mr. McLarty's licence, then a new First Notice must be served.

Second issue: Did the motions judge err in ordering the Director to withdraw any federal licence denial application?

[23] Another way the FRO enforces support orders is by making a federal licence denial application, which is a request to the appropriate federal minister to suspend, refuse to renew or refuse to issue a federal licence to a defaulting payor. According to Mr. McLarty's affidavit, his two federal licences at stake were his pilot's licence and his passport. Federal licence denial applications are provided for in the federal legislation. Under s. 67(1) of the Act, the FRO (which is a provincial enforcement service) may make a federal licence denial application where a person "is in persistent arrears under a support order":

67(1) Application -- Where a debtor is in persistent arrears under a support order or a support provision, a provincial enforcement service may apply to the Minister that the following actions be taken against the debtor:

(a) that no new schedule licences be issued to the debtor;

(b) that all schedule licences held by the debtor be suspended; and

(c) that schedule licences held by the debtor not be renewed.

[24] The application must be supported by an affidavit showing that the defaulting payor has been given notice of the Director's intention to make an application. The contents of the notice are prescribed by s. 67(3)(c) of the statute:

67(3) Contents of supporting affidavit--An application must be accompanied by an affidavit in the prescribed form. The affidavit must be submitted by an officer of the provincial enforcement service and must contain the following statements:

(c) that the provincial enforcement service has sent a notice to the debtor at the debtor's last known address,

(i) stating that the provincial enforcement service has reasonable grounds to believe that the debtor is in persistent arrears under the support order or support provision,

(ii) stating that the provincial enforcement service intends to make a licence denial application in relation to the debtor,

(iii) informing the debtor of the consequences to the debtor of a licence denial application, and

(iv) advising the debtor that a licence denial application will not be made if the debtor enters into a payment plan that is acceptable to the provincial enforcement service or satisfies the provincial enforcement service that the debtor is unable to pay the amount in arrears and that the making of the application is not reasonable in the circumstances.

[25] Under s. 67(5), a notice is deemed to have been received ten days after it was sent, and under s. 67(4) no application can be made until 30 days after the payor receives the notice. Once an application is made, however, the appropriate federal minister must suspend, refuse to renew, or refuse to issue a licence. See ss. 69(2) and 70 of the federal Act. Under s. 72(1), proceedings for denying a person a federal licence will be terminated only if the FRO is satisfied the payor has paid the arrears, entered into a reasonable payment plan or is unable to pay the arrears.

[26] Mr. McLarty acknowledges having received the February 10, 2000 letter. This letter is the notice prescribed by s. 67(3)(c) of the statute. The Director has not yet made a federal licence denial application and the motions judge's order prevents the Director from doing so pending the determination of Mr. McLarty's variation application or the termination of the refraining order.

[27] The Director submits that the motions judge had no jurisdiction to order the FRO to withdraw any federal licence denial application and give Mr. McLarty what amounts to injunctive relief. The Director relies on s. 71 of the federal legislation, which prohibits an appeal "from any action taken under this Part". "This Part" is Part III of the federal Act, which is headed "Licence Denial" and includes the provisions for a federal licence denial application. Section 71 provides:

71. No appeal -- Notwithstanding the provisions of any other Act of Parliament, of any regulation or order made under any other Act of Parliament or of any order made pursuant to a prerogative of the Crown, no appeal lies from any action taken under this Part.

[28] In my view, s. 71 does not assist the Director because the action that led to the order of Sedgwick J. was a motion, not an appeal. Parliament must be taken to know the difference between a motion or an application and an appeal. Only an appeal is prohibited.

[29] However, even assuming that the motions judge had jurisdiction to make an order that the FRO withdraw any federal licence denial application, he had no grounds to make that order. The notice required by s. 67(3)(c) of the statute was properly served. If Mr. McLarty wanted to prevent the application from being made under s. 67(3)(c)(iv), either he had to enter into an acceptable payment plan or he had to satisfy the FRO that he could not pay the arrears and that the licence denial application would not be reasonable. He did neither. Therefore, the motions judge erred in ordering the FRO to withdraw any federal licence denial application.

Conclusion

[30] I would allow the appeal in part, by setting aside the motions judge's order and in its place ordering the Director to direct the Registrar of Motor Vehicles to reinstate Mr. McLarty's driver's licence. I would not order any costs of the appeal.

Appeal allowed in part.