Court File and Parties

Ontario Court of Justice

Date: March 10, 2017

Court File No.: Belleville, Ontario FO-10-177-E001

Between:

Director, Family Responsibility Office FBO Kelly Ann McMurter Applicant

— AND —

James Robert Gordon McMurter Respondent

Before: Justice W. Malcolm

Heard on: March 2, 2017

Decision on Default Hearing released on: March 10, 2017

Counsel:

• Mr. Pyper, for the applicant(s)
• Abba Katz, for the respondent(s)

Decision

Malcolm J.:

Overview

Parties

[1] The applicant is the Director of the Family Responsibility Office (Director) who acts for the benefit of Kelly Ann McMurter (support recipient) in the enforcement of the Order dated April 6, 2010 of Mr. Justice McKinnon of the Superior Court of Justice (SCJ). The respondent is James Robert Gordon McMurter (support payor).

[2] The support payor and recipient were married to each other on July 23, 1977, raised two children together, and separated on August 25, 2007. They divorced on June 26, 2010.

[3] The parties are members of the Mohawks of the Bay of Quinte First Nation and are Status Indians under the Indian Act. They both reside and own property on the Mohawk Territory in the County of Hastings. The support payor owns and operates a hardware business on the Tyendinaga Territory.

[4] This is a decision on a hearing brought by the Director under section 41 of the Family Responsibility and Support Arrears Enforcement Act (the Act or FRSAEA) for a default order and a term of committal in the event that payment is not made.

[5] James McMurter (support payor) owes $174,043.50 in arrears to Kelly Ann McMurter (support recipient), inclusive of costs and interest for his non-payment of the $2,500.00 monthly spousal support obligation.

Background

[6] On February 14, 2008, the support recipient commenced an application for divorce. On July 14, 2009, a temporary order was made requiring the support payor to pay $2,439 in spousal support per month until the trial or further order of the Court. This order was filed with the Director for Enforcement but the respondent did not comply with the order and his driver's license was suspended.

[7] The support recipient brought a motion to strike the support payor's trial proceedings for nonpayment of support in March 2010. However, the support payor agreed to pay $9,000 in arrears and the motion was withdrawn and the driver's license was reinstated.

[8] On April 6, 2010 after the commencement of their trial, the parties signed minutes of settlement, which were incorporated into the court order of Mr. Justice McKinnon. Mr. McMurter was to pay Mrs. McMurter monthly spousal support of $2,500.00. In addition, spousal support arrears were fixed at $40,915 and payable as follows: $10,000 due by May 6, 2010; $10,000 due by June 6, 2010; $1,000 per month commencing July 6, 2010 for 20 months. The order also required the support payor to transfer to the support recipient his interest in several properties and cash in a jointly held mutual fund.

[9] The final order was filed for enforcement. The support payor did not comply with the order and his driver's license was again suspended.

[10] On February 8, 2011, Mr. Justice Byers of the Superior Court of Justice granted a refraining order against a further driver's license suspension on an undertaking that Mr. McMurter bring a motion to change. He was ordered to file a financial statement and disclose business records for the previous three years. The motion to change was dismissed on August 2, 2011, for failure to comply with the disclosure orders and his driver's license was suspended for a third time.

[11] On January 17, 2012, the support payor sought leave to extend the time to serve and file a notice of appeal from the April 6, 2010 Order of Justice McKinnon on the basis that, inter alia, the Court did not consider the implications of the Indian Act on support payments when it approved the minutes of settlement.

[12] The support payer's appeal was dismissed by the Ontario Court of Appeal on February 6, 2012. The Court found that the parties had been "fully involved in the negotiations that led to the minutes of settlement" and the respondent was simply "disgruntled" by the settlement that he made. With respect to the support payer's arguments regarding the Indian Act, the Court found that the trial record revealed discussions about the implications of the Indian Act on the division of property "and the respondent's assertions that the parties had not considered the Indian Act was without merit."

[13] This notice of default was originally commenced on September 20, 2012. The arrears of support at that time were $77,815. The support payor challenged the constitutionality of section 41 of the FRSAEA. The Director had suspended the support payor's license and sought a default order pursuant to section 41(10) with a committal order for imprisonment in the event of non-payment.

[14] In April 2013, prior to the hearing of the constitutional challenge, the support payer brought a second motion to change the April 2010 order of Justice McKinnon.

[15] On April 18, 2013 the constitutional hearing was held. The decision of the Honourable Justice E. Deluzio was released on June 18, 2013. Among other claims, the support payor claimed that section 41 of the Act should not apply to him because it intruded into the core federal power over Indians under s. 91(24) of The Constitution Act by impairing his vested legal rights under sections 29 and 89 (1) of the Indian Act.

[16] The Court held:

I find the Respondent's argument completely without merit. Mrs. McMurter is a status Indian. Mr. McMurter is a status Indian. Their status as Indians is not affected by the enforcement proceedings authorized by section 41 of the FRSEAA. The respondent points out that other status Indians on the reserve might suffer economic hardship if he is imprisoned or unable to operate his business, but Mrs. McMurter will definitely suffer economic hardship if the support order is not enforced. She is currently owed over $77,000 and support payments by the respondent. Clearly, the obligation to provide for dependent family members must also be an important aspect of the status and rights of Indians living in reserve communities.

As a status Indian and a resident of the province of Ontario, Mrs. McMurter is entitled to the benefit of the FRSAEA, which is a law of general application enacted for the purpose of enforcing support orders that are in default. The respondent, Mr. McMurter, is a payor who is in default of his Court ordered support obligations, and he is subject to the default proceedings and enforcement mechanisms offered by section 41 of the FRSAEA.

[17] Justice Deluzio's decision was not appealed by the support payor.

[18] At the request of the support payor, the default hearing has been adjourned 14 times since the decision of Justice Deluzio, awaiting the completion of the motion to change. In total, there have been 19 appearances on this default hearing.

[19] In January 29, 2014 a temporary default order was made by me that the support payor make a lump sum payment of $20,000.00 on the arrears and continue making the ongoing $2,500.00 monthly payments.

[20] The default hearing was adjourned to May 2014, awaiting the motion to change.

[21] In default of the payment of the $20,000 he was ordered to be imprisoned for 30 days, which could be served intermittently. He was ordered to serve 5 days imprisonment for the default on the non-payment of the ongoing support. The support payor appealed my decision and then abandoned the appeal on October 30, 2015.

[22] Numerous other temporary default orders have been made for the support payor to pay the support and the arrears. From time to time, payments were made by the support payor but usually in the context of these default hearings or pursuant to directions from the appeal Courts.

[23] No motions were brought for warrants for the support payor's arrest and committal for non-payment, but on May 2, 2014, the Director made an oral motion for a warrant of committal. Because counsel for the support payor had just been removed from the record and the Director had not provided advance notice of the request for the immediate committal, the hearing was adjourned and not addressed until this hearing on March 3, 2017.

[24] The motion to change was finally heard in 2016. After a three week trial, the Honourable Madam Justice MacLeod-Beliveau on July 15, 2016 dismissed the support payor's motion to change and made various ancillary orders concerning property owned by the parties. Subsequently, the Court ordered the support payor to pay costs to the self-represented support payor in the amount of $30,000.00 to be enforced by the Director.

[25] The Court found that the support payor had a net worth of $1,861,350.00 and had an annual non-taxable income of $150,848.00 which grossed up for income tax purposes equaled $244,000.00.

[26] The Court found that at the time of Justice McKinnon's order (April 2010), the support payor's net worth was $1,285,456 and his non-taxable income was $156,942.00 which grossed up for income tax purposes was $258,024.00.

[27] If the parties had used the Spousal Support Advisory Guidelines (SSAG) for the calculation of spousal support, the monthly support would have been $6,622.00 per month.

[28] In her comprehensive decision, Justice McLeod-Beliveau held that the respondent had the ability to pay the ongoing support and all of the arrears owing.

[29] As to the enforcement of the order by the Director and the support payor's ability to pay, Justice McLeod-Beliveau held that:

There is some direct correlation between the litigation history, the Court proceedings, the default hearing proceedings, and Mr. McMurter's support payments. The pattern of payment does not correlate to any significant change in Mr. McMurter's business income, or fluctuation in his business income, sufficient to establish any inability to pay on the part of Mr. McMurter. The pattern of payment correlates most to the enforcement of the final order by the FRO. The inference I draw from this pattern is that Mr. McMurter can well afford to pay the spousal support ordered, and the full amount of arrears. He simply chooses not to pay.

[30] The Court further held that:

Mr. McMurter has used the Court system to frustrate payment of spousal support to Mrs. McMurter. He has not made full and frank financial disclosure throughout these lengthy proceedings. …

This was a marriage of long duration, Mrs. McMurter has done everything that was expected of her to earn income and made efforts to support herself since 2012. Mr. McMurter is in breach of the consent order of Justice McKinnon dated April 6, 2010 because of his own determination of what he is going to pay, based on his own needs, with a disregard of the Court order. No convincing explanation for his default exists on the evidence in this case. Further and more egregious, is that there is clear evidence that Mr. McMurter is lying about his true income, and that he indeed does have the funds to pay the support order and all of the arrears.

Mr. McMurter's failure to pay is defiant, deliberate, willful and blatant. He has made strenuous efforts and spent considerable sums of money in attempting to defeat Mrs. McMurter's spousal support claim. He has a long history of not following Court orders. An order preventing him from bringing further proceedings while he is in breach and or in default of a Court order is necessary to protect the integrity of the administration of justice, which is at stake when a party disobeys a Court order.

[31] After the decision was released, the default hearing was before this Court in November 2016 but the support payor asked for an adjournment to March 2, 2017 to present arguments as to whether "Gladue" principles should apply to a committal order made pursuant to section 41(10)(h) of the Act.

[32] Although Mr. McMurter appealed the decision of Justice MacLeod-Beliveau on December 21, 2016, the Honourable Chief Justice Strathy of the OCA dismissed his request to extend the time to perfect his appeal and noted the appeal dismissed as abandoned. Counsel for the support payor advises that the December 21, 2016 decision is being appealed.

Position of the Parties and Relief Requested

[33] The Director seeks a final default order against the support payor with a committal term if he defaults on his support payments and costs.

[34] The support payor requests an adjournment of the default proceedings until after the appeal has been heard. This request was denied given the length of time the proceeding had been before the Court.

[35] Further the support payor seeks a "Gladue" Report be completed and the disposition on the default be referred to a "sentencing circle of Tyendinaga".

[36] At the default hearing, I had the benefit of facta from the Director and the support payor, books of authorities and extensive submissions. The support payor filed an affidavit with two character references attached and he testified. He did not file a fresh financial statement.

Issues to be Considered

The issues to be considered by this Court are:

1. What arrears does the support payor owe to the support recipient?
2. Does the support payor have the ability to pay some or all of the arrears and the ongoing support?
3. Should there be a committal order if the support payor defaults in his payments?
4. If a committal order is considered, should a "Gladue" report be ordered?
5. Can this Court delegate its authority to the Tyendinaga Justice circle for a final disposition?

Analysis

What Arrears Does the Support Payor Owe to the Support Recipient?

[37] I find the arrears are as indicated in the Director's statement of arrears filed in these proceedings as Exhibit 1 and in accordance with the findings of fact by Madam Justice MacLeod-Beliveau in the July 15, 2016 decision on the motion to change. The support payor does not deny the quantum of arrears or provide evidence to the contrary.

[38] Therefore, I find that the arrears pursuant to the April 6, 2010 order of Mr. Justice McKinnon, inclusive of costs and interest are $174,043.50 on March 3, 2017.

Does the Support Payor Have the Ability to Pay Some or All of the Arrears and the Ongoing Support?

[39] Despite the support payor's claim that he has no ability to pay the ongoing spousal support, the evidence is overwhelmingly to the contrary. He has the ability to pay; he simply chooses not to pay. I rely on the findings of Madam Justice MacLeod-Beliveau in her decision. The trial was completed over 16 days and there was a detailed review and analysis of Mr. McMurter's net worth and income (despite the "document dump" that occurred in the trial). There can be no doubt that he has the ability to pay all of the arrears together with the ongoing monthly support payments of $2,500.00.

[40] The support payor testified as to the custom or culture of his Band as it relates to the support of a spouse and appeared to justify his refusal to pay the Court ordered support on this basis. He testified that he believed he had satisfied the appropriate financial arrangements for his spouse on separation. He commented that she was without debt. This attitude of the support payor is consistent with his seven year legal battle to avoid paying spousal support.

[41] He also testified that he was doing the best that he can to meet his legal support obligations. This is not true. He could do more but refuses to do so. He has numerous properties with some of a value equal to his arrears owing. Since the order of July 15, 2016 was made, instead of paying his support obligations, he has been delaying the enforcement proceedings through numerous adjournments and appeals.

[42] I find that he has the ability to pay the ongoing payments of $2,500.00 per month and the outstanding arrears of $174,043.50.

Should There Be a Committal Order if the Support Payor Defaults in His Payments?

[43] The Court will only impose a committal term after all other enforcement mechanisms have been exhausted. More than nonpayment of support is required to impose a committal term in the event of the default. As in this case, the payor's conduct must demonstrate a willful and deliberate disregard for the obligation to comply with the support order.

[44] As the history of these proceedings shows, the support payor only pays when there are enforcement proceedings. However, even with these orders in place, he is often in default.

[45] Since the Madam Justice McLeod-Beliveau's order was made in July 2016, he has purchased a 2016 Nissan vehicle. He has been able to purchase an asset while not paying his support obligation.

[46] The Director has seized his license at least three times, garnished bank accounts, and obtained temporary default orders. The Director has exhausted all enforcement procedures.

[47] On this 19th attendance on the default hearing, the Director must have the ability to request a warrant of committal to imprisonment if the support payor does not comply with the default order. The support payor has had countless opportunities to abide by the terms of the various default orders. None of the previous default orders required full payment of the arrears. Given the findings of Madam Justice McLeod–Beliveau, the payment schedules were extremely generous. Without a committal order, the support recipient may never obtain the support owed to her and this order "must be given teeth".

[48] In granting a committal term in a default order, caution and fairness must be considered. As set out in the Court of Appeal before a term of committal is imposed:

a) the Court must explain to the payor the nature of the proposed committal order and the effect it would have on the payor's liberty:

b) the Court must explain why it is considering making a committal order:

c) the payor must be given an opportunity to respond to the reasons offered by the Court and it must advise the Court of any additional facts that may be relevant to the Court's decision to make the order.

[49] The support payor is aware of why the committal order is being considered. He has known since the first default hearing that imprisonment may be ordered if he did not pay his support. Further, I find that the support payor's refusal to pay support and abide by the temporary default orders is clearly deliberate and willful.

If a Committal Order Is Considered, Should a "Gladue" Report Be Ordered?

[50] The support payor submits that the sentencing principles articulated by the Supreme Court of Canada in R. v. Gladue and more recently in R. v. Ipeelee, and section 718.2(3) of the Criminal Code are applicable in this default proceeding.

[51] As held in Ipeelee:

Gladue directs sentencing judges to consider: one the unique systemic and background factors which may have played a part in bringing the particular aboriginal offender before the Court's; and to the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence.

[52] In Ipeelee, the Court found that where indigenous offenders

find themselves in situations of social and economic deprivation with the lack of opportunities and limited options for positive development … their constrained circumstances may diminish their moral culpability.

[53] However, support enforcement proceedings under the Act are not criminal proceedings with a "true penal consequence". There is no information sworn, no criminal record is created, and incarceration is not imposed where there is an inability to pay.

[54] As its object, a committal order in the context of a default of a support enforcement order is to ensure compliance with Court ordered support obligations with no culpability or blameworthiness of the support payor determined by the Court. If the support payor is imprisoned for non-payment he or she can be released immediately upon payment. He "carries the keys of his prison in his own pocket".

[55] The underlying factors in Gladue such as systemic discrimination, social and economic deprivation, and historical dislocation may have relevance to an indigenous payor's ability to pay. However once he or she is found to have the resources necessary to pay a support obligation, the Court must make those orders only within the context of the statutory framework of the FRSAEA.

[56] In the Court of Appeal decision of Forrest v. Lacroix (Estate of) the Court held:

[w]here incarceration is considered necessary to enforce Court orders to pay money, it is provided for in well-tailored statutory provisions, which in the case of family law support orders are set out in the FRSAEA.

[57] The FRSAEA is a complete statutory code for the enforcement of support orders in Ontario. This is distinguishable from the powers of contempt for breach of payment of a support order, which cannot be used to enforce orders for non-payment. Rule 31 (1) of the Family Law Rules provides that payment orders are expressly excluded from contempt motions.

[58] In Frontenac Ventures Corp. v. Ardoch Algonquin First Nation et al., the Court applied Gladue principles to a case of civil contempt. The case involved two persons who breached an injunction obtained by a mining company to prevent persons from disrupting or hindering the mining company's activities on the lands in question. Two persons were found in civil contempt of Court and sentenced to six months imprisonment together with monetary fines.

[59] The appeal Court found as follows:

First, in his reasons the motion judge focused exclusively on punishment and deterrence, both specific and general. He said nothing about promoting reformation and rehabilitation of leaders of a first nation community. Both sides of the standard analytical framework and sentencing cases needed to be assessed in a balanced fashion.

Second, the motion judge failed to refer to the mitigating factors that were present in this case.

[60] Although the support payor relies on the case, it is not relevant to this proceeding because the contempt in Frontenac was a breach of an injunction, not non-payment of support. These enforcement proceedings must be considered within the framework of the FRSAEA.

[61] In his request for a Gladue Report and an adjournment of these proceedings, the support payor relies upon Children's Aid Society of Brant v. C.G., a January 31, 2014 oral decision of Justice G.B. Edward. In that case, the Society brought a summary judgment motion to find an aboriginal child in need of protection and make her a crown ward for purposes of adoption. The Court referred to the local aboriginal person's Court for criminal offenders of first Nations background. He indicated the goal of that Court was

to find out as much as possible about the offender and fashion a sentence to address his or her criminal genic factors, while at the same time holding them accountable for their behaviour". He said that " background of the aboriginal offender is so important. The effect of residential schools, poverty, and displacement and substance abuse all impact on why that person is before the Court.

Surely a thorough canvassing of those factors with the mother in this case would help us understand why she's in child protection Court. Yet, with knowing virtually nothing about the mother's background, we've given her a grand total of 13 months to learn how to become a mother.

[62] Because of a lack of information, the Court denied the motion for summary judgment and asked for evidence about the mother's background and how did it or did it not prepare her to parent. This decision, too, does not assist the support payor.

[63] In proceedings under the Child and Family Services Act (CFSA), the Court is mandated to consider whether a child is Indian or a native person. If so, the band or native community of the child's first nation must be notified.

[64] Further, where a Court is being asked to make an order or determination in the best interests of the child such as crown wardship and the child is an Indian or native person, the Court must take into consideration the importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child's heritage identity. In the case of the Children's Aid Society of Brant v. C.G., supra, the Society did not provide sufficient evidence as to those considerations.

[65] I find that the application of Gladue is not required in this proceeding as to whether there shall be an order of committal.

[66] During his testimony, the support payor provided considerable personal information about himself including: details about his childhood much of which was spent in the care of the local Children's Aid Society because of alcohol abuse and domestic violence in his family; the importance to him of his First Nation status; his cultural and customary traditions within the Mohawks of the Bay of Quinte; his status within the community and his business; and the loss that would be felt by the community if he was incarcerated.

[67] The same evidence was provided in writing in the constitutional challenge when the support payor advised the Court that:

enforcement measures would interfere with his relationship with other Indian families within his community, including his marital relationship with his ex-wife and would possibly interrupt economic benefits to the community if he is imprisoned due to his default, unable to operate his business and forced to lay off first Nations employees.

[68] The support payor testified that despite being in the care of the Society for much of his formative years, he was able to obtain a great education; he maintained contact and sometimes lived with his mother; he attended school at the Tyendinaga Public School for some time and had contact with other youth who were First Nations; he and his wife moved to the Tyendinaga territory when they were a newly married couple; and he has enjoyed considerable financial and personal success as an adult.

[69] I am satisfied that all of the evidence necessary to make the committal order is before the Court and nothing more is required. To adjourn to obtain more information about the support payor would be to perpetuate the delay and avoidance of his Court ordered obligation to support his former spouse.

[70] I have already heard considerable evidence as to the support payor's systemic and background factors. I find that they did not impact his decision to default in payment of support. Nor are they relevant to the considerations necessary before making a committal order.

[71] The request for the Gladue report is denied as it is not relevant to this proceeding. Further, the support payor had ample opportunity since September 2012 to file a Gladue report with his default material. I find that he is simply trying to delay the inevitable warrant for a committal that will be issued if he does not comply with a default order.

[72] I am left with no other recourse than to order a period of incarceration if the support payor defaults on payment.

[73] In default of payment of the entire arrears after a period of 60 days, I will grant a committal order in the amount of 180 days. Given the amount of the arrears; the length of time the support payor has had to obtain the payment or security for the arrears; his flagrant disregard of the previous default orders; the evidence that is before me in these proceedings, and considering the decision of Madam Justice McLeod-Beliveau, only the longest period of committal is appropriate.

[74] As well, a period of 5 days for the committal on the non-payment of the ongoing support is sufficient and in accordance with my earlier default order which was appealed by the support payor and then abandoned.

Can This Court Delegate Its Authority to the Tyendinaga Justice Circle for a Final Disposition?

[75] The support payor asks that I adjourn the decision on the committal order to a Tyendinaga Justice circle. In his affidavit filed in these proceedings he indicates he has been asked to be a member of the youth Justice committee which facilitates Justice Circles. However, when I read the letter from the youth worker attached to the affidavit it indicated that "once Jim's life is more relaxed I would like for him to be a member of our Justice committee". It is clear that the support payor's life cannot be relaxed until he stops the endless barrage of Court challenges to the support order of Mr. Justice McKinnon of April 6, 2010. Further even if there was authority to do so, I cannot adjourn the disposition on the enforcement proceeding to a committee that the support payor has been asked to join. This conflict of interest should be evident to the support payor.

[76] There can be no restorative purpose in the referral to a Justice Circle and there appear to be no mitigating circumstances to consider as to why the support payor refuses to pay support.

[77] In addition, this Court cannot delegate its authority to make a decision under the FRSAEA to the Justice Circle. The only person with authority to make a decision in these proceedings is the judge who is presiding unless the support recipient withdraws from FRO and enforces on her own behalf.

Costs

[78] Costs were reserved when the support payor requested an adjournment of the default hearing on May 15, 2015 and for previous requests for adjournment. The Director has been successful in this default hearing and in obtaining temporary default orders on earlier dates. The support payor has not behaved reasonably, has not made an offer to settle, and has not complied with orders for filing of financial statements. Costs are appropriate pursuant to Rule 24 of the Family Law Rules.

[79] No bill of costs has been filed, but I find that fair and reasonable costs for this proceeding, are $5,000.00 together with $1000.00 for the contested adjournments, inclusive of tax and disbursements.

[80] In consideration of all of the evidence before me a final order will issue as follows:

Order

1. The respondent, James Robert Gordon McMurter, shall pay the full amount of arrears owing, totaling $174,043.50 within 60 days of today's date being March 10, 2017.

2. In default of the lump sum payment ordered in paragraph 1 (one), the respondent shall be incarcerated for 180 days or until the full amount is sooner paid.

3. The respondent shall pay the ongoing support in the amount of $2,500.00 per month, commencing on the first day of April 2017.

4. In default of each and any payment ordered in paragraph 3 (three), the respondent shall be incarcerated for five days per default.

5. The respondent shall pay costs to the Director in the amount of $6,000.00 within 60 days.

6. The Director may apply without notice for a warrant of committal in the event of a default.

7. The approval by the respondent as to form and content of this order is waived.

Released: March 10, 2017

Signed: Justice W. Malcolm