Court File and Parties
Court File No.: Brampton 413-01
Ontario Court of Justice
Between:
Director, Family Responsibility Office on behalf of Lynn Brewster Applicant,
— And —
Michael Stanley McLaughlin Respondent.
Before: Justice S.R. Clark
Notice of Default Hearing
Heard on: May 1, 2012
Ruling released on: May 8, 2012
Counsel
Ms. S. Campoli — for the Family Responsibility Office
Ms. Lynn Brewster — on her own behalf
Ms. Michelle Gordon — for the respondent payor, Michael McLaughlin
CLARK J.:
1:0 INTRODUCTION
[1] This was a second appearance on a Notice of Default.
[2] The matter was last before the Court on March 27, 2012.
[3] The respondent payor, Michael McLaughlin (hereinafter referred to as "the payor"), was not present today. His counsel, Ms. Gordon, made submissions on his behalf.
[4] The support recipient, Lynn Brewster (hereinafter referred to as "the recipient") appeared on her own behalf in an effort to protect her interests in this matter.
[5] The director of the Family Responsibility Office seeks a final default order on the following terms:
That outstanding arrears be fixed at $9,358.18, and that they be paid within 30 days, failing which the director be at liberty to seek a warrant of committal to incarcerate the payor for a period of 60 days.
That the payor continue to make ongoing child support payments in accordance with the current order, failing which he be incarcerated for a period of 3 days for each missed payment of $300.00 per month.
That the director be at liberty to proceed to obtain any future warrants for committal on an ex parte basis.
[6] Ms. Campoli filed a current director's statement setting out the above-noted amount of arrears.
2:0 THE POSITIONS OF THE PARTIES
2:1 The Family Responsibility Office
[7] Ms. Campoli explained that the reason why the director is taking such a definite position is because of the history of this matter. This is the second appearance on this Notice of Default. The original order requiring the payor to make child support payments was made in 2007, with monthly payments of $300.00 to commence on January 1st, 2007.
[8] By 2004, the payor was in substantial arrears. Default proceedings commenced against him. There were a total of 14 Court appearances in an effort to deal with this matter. The payor did not bring a motion to change, nor did he make ongoing child support payments.
[9] Finally, in May 2008, some progress was made. The payor agreed to a final default order, wherein he would pay $500.00 per month as of August, 2008, representing $300.00 toward ongoing child support and $200.00 toward outstanding arrears. This was on the basis that he would face 3 days of incarceration for each missed payment.
[10] Subsequently, he defaulted yet again. The director applied for a warrant of committal on August 2nd, 2011, resulting in the Court issuing a warrant for the arrest of the payor to be incarcerated for a period of 75 days until the amount of the outstanding arrears of child support, totalling $12,800.00, was paid.
[11] The director's statement shows that the above-noted amount was paid on August 8, 2011.
[12] Since that time, however, the payor has made no further voluntary payments.
[13] It is acknowledged that he was on social assistance for a period of time, and was receiving employment insurance benefits. Some money has been garnished from this source.
[14] Counsel for the payor, Ms. Gordon, made an "offer" to Ms. Campoli today, on the basis that the payor is now employed. He is content to have his wages garnished at a 50% rate forthwith.
[15] Ms. Campoli submits, however, that she is not at all confident that the payor will follow up or follow through on what he states he is prepared to consent to. Furthermore, he has been aware of his ongoing obligation for an extended period of time. He previously consented to a final default order and did not comply with the terms. She submits further that he only responds to the process and makes payments when incarceration is imminent. Furthermore, he has never brought a motion to change.
[16] Ms. Campoli submits further that the recipient should be able to rely on the strength of the legislation and the process, to receive child support payments which are due and owing. It is not the purpose of the legislation to force the director of the Family Responsibility Office to continue bringing these types of proceedings against the payor.
[17] Ms. Campoli submits that this is why the director is asking that any future applications for a warrant of committal be done on an ex parte basis.
2:2 The Payor
[18] Ms. Gordon submits that the Court should not place as much weight on the history of past proceedings, as much as Ms. Campoli has asked the Court to do.
[19] She submits that the payor has tried his best to honour his outstanding responsibilities.
[20] He has faced a number of unexpected and unanticipated challenges. For example, he had to move to Barrie, Ontario to look after his mother who suffered a heart attack and further health issues.
[21] The payor is employed as a chef. He could not find stable employment for a significant period of time. Furthermore, he injured his back, rendering him unable to apply for certain jobs or to find consistent employment.
[22] Ms. Gordon submits that the payor has now been employed at Georgian Downs since July, 2011. Rather unfortunately, however, he was involved in a car accident, resulting in his spouse being killed. He is facing pending criminal charges in this regard. However, he has been able to keep his job.
[23] Ms. Gordon submits that the payor was able to make the payment of $12,800.00 in August, 2008, on the basis that he was able to borrow the money from his mother. This money came from the proceeds of an insurance claim from a car accident.
[24] There is no longer a source of funds available, either through the payor's mother, or through any of his other endeavours to be able to pay off the outstanding arrears in a lump sum.
[25] Going forward, Ms. Gordon submits that the only income source for the payor is his current job. He is willing to have his wages garnished at a 50% rate.
[26] Furthermore, he is prepared to consent to a final order that he pays $800.00 per month, $300.00 of which goes to ongoing child support, and $500.00 goes toward outstanding arrears.
[27] Ms. Gordon also asks the Court to consider that if he is in default of any such payments, that he be given a 14 day grace period before any incarceration, just in the event that any payments are not properly recorded or received on time.
[28] Ms. Gordon implores the Court to consider that if any final order made today is too onerous, resulting in the payor being incarcerated, quite obviously, he will lose his job and there will be no money available to the recipient.
[29] Ms. Gordon also submits that regardless of the history of this matter, the payor is now in the best position he has been in since 2009 to address this matter in the most responsible way possible.
[30] There is no change of job contemplated by the payor. She submits, finally, that he will respond to this process in a meaningful and responsible manner.
2:3 Further Submissions by the Family Responsibility Office
[31] Ms. Campoli submits that the offer to the payor to pay monthly has been made to him before, however it never happened, notwithstanding his consent.
[32] It should also be noted that in August, 2011, he made an overture that he was prepared to settle this matter by having his wages garnished at a 50% rate as well. However, rather than taking any initiative, clearly recognizing his ongoing responsibility, he merely "sat back" and did nothing, instead waiting until the Family Responsibility Office took further steps against him.
3:0 ANALYSIS
[33] The Court queried why the payor has not given Ms. Gordon instructions to bring a motion to change. She very candidly stated that rather than incurring the legal costs to do so, he would rather pay these monies toward the arrears. This is laudable, at least theoretically.
[34] Having regard to the history of this matter, and the significant length of time over which the payor has had the opportunity to organize his financial affairs, the time has come for him to treat this obligation with the importance it deserves.
[35] The payor is no longer entitled to put his own interests ahead of those who are entitled to child support.
[36] It would appear that the tasks he is required to perform in his work are not so onerous that he could not give realistic consideration to supplementing his income through other forms of employment.
[37] Furthermore, the payor may have to prevail upon other family members in an effort to assist him in paying the arrears. He can then make private arrangements as to an appropriate repayment schedule. Someone other than the Family Responsibility Office must now be either the banker or broker.
4:0 ORDER
[38] The Court orders the following:
The respondent payor, Michael Stanley McLaughlin, shall pay arrears of child support, fixed at $9,358.18 as at May 1, 2012 and that this full amount be paid within 90 days, on or before August 8, 2012, failing which, the director of the Family Responsibility Office be at liberty to seek a warrant of committal to incarcerate the said payor for a period of 60 days.
The said payor make ongoing child support payments in the amount of $300.00 per month, commencing May 1, 2012, failing which, he be incarcerated for a period of 3 days for each missed payment.
The director of the Family Responsibility Office is at liberty to proceed to obtain any future warrants for committal on an ex parte basis.
Released: May 8, 2012
Justice S.R. Clark