Court File and Parties

Date: November 26, 2018

Court File No.: D41459/07

Ontario Court of Justice

Between:

Mohamed Farah

Regina Senjule, duty counsel, assisting the Applicant

Applicant

- and -

The Director of the Family Responsibility Office, for the benefit of Bisharo Yarow

Diane Gillies, for the Respondent

Respondent

Heard: November 23, 2018

Justice S.B. Sherr

Endorsement

Part One – The Jurisdictional Issue

[1] The issue before the court is whether it has the jurisdiction to make an order that the respondent, The Director of the Family Responsibility Office (the Director), refrain from directing the Registrar of Motor Vehicles to suspend the driver's licence of the applicant (the father), pursuant to the Director's Final Notice to Suspend Driver's Licence, dated November 1, 2018 (the Final Notice).

Part Two – Facts

[2] On February 11, 2008, Justice Harvey Brownstone ordered the father to pay child support of $468 each month for his 7 children.

[3] This order has never been changed.

[4] Justice Brownstone's support order was sent to the Director for enforcement. In August, 2017, The Director sent a First Notice to Suspend Driver's Licence (First Notice) to the father. In response, the father brought a motion asking the court to refrain the Director from directing the Registrar of Motor Vehicles to suspend his driver's licence.

[5] On August 30, 2017, Justice Roselyn Zisman made an order refraining the Director from directing the Registrar of Motor Vehicles to suspend the father's driver's licence (the Refraining Order). This order was made on terms. The order provided that the father must bring a motion to change Justice Brownstone's order within 20 days, make monthly support payments of $468, starting on September 1, 2017 and pay $200 each month, on account of support arrears, also starting on September 1, 2017.

[6] The father failed to comply with the terms of the Refraining Order. He did not bring a motion to change Justice Brownstone's order or make the required monthly support payments.

[7] The Director sent the father the Final Notice dated November 1, 2018.

[8] The Final Notice set out that:

a) This is the final notice of the Director's intention to suspend the father's driver's licence.

b) To avoid suspension of his driver's licence by November 26, 2018, the father must either pay the arrears outstanding[1] or make a payment to bring his Refraining Order back into good standing.

[9] The father did not pay the outstanding arrears or bring the payment terms of the Refraining Order into good standing.

[10] On November 16, 2018, the father issued his motion in this court for another refraining order.

Part Three – Analysis

[11] The legislative framework for the suspension and reinstatement of a payor's driver's licence for the purpose of support enforcement is governed by Part V of the Family Arrears and Support Enforcement Act (the Act).

[12] Part V of the Act is a complete code for dealing with the suspension or reinstatement of a driver's licence. The court has no other jurisdiction to deal with these issues. See: Adubofuor v. Director, Family Responsibility Office, for the benefit of Janice Adubofuor, [2001] O.J. No. 708 (OCA); McLarty v. Director, Family Responsibility Office, for the benefit of Sylvie Langlois, [2001] O.J. No. 707 (OCA).

[13] Section 34 of the Act provides that 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.

[14] Subsection 35 (1) of the Act provides that if a payor is served with a First Notice, the payor, on notice to the Director, may make a motion refraining the Director from directing the suspension of the payor's driver's licence under subsection 37 (1) of the Act, on terms that the court considers just.[2]

[15] Subsection 35 (10) of the Act states that a refraining order cannot be made after the 30-day period referred to in the First Notice and subsection 35 (11) states that a court may not extend that 30-day period.

[16] If the 30-day period referred to in the First Notice expires on a day when court offices are closed, the last day that the court can make a refraining order is the last day on which court offices are open before the 30-day period expires. See: subsection 35 (13) of the Act.

[17] In Adubofuor, supra, the Ontario Court of Appeal overturned a decision granting a refraining order and a reinstatement of the payor's driver's licence when the order was made more than 30 days after the date set out in the First Notice, as the motions judge had no jurisdiction to make these orders.

[18] Subsection 35 (1) of the Act only states that the court can make a refraining order in response to a First Notice. It makes no reference to the court being able to make a refraining order in response to a Final Notice.

[19] Subsection 35 (20) of the Act sets out that a refraining order is automatically terminated if the payor does not, within 20 days after the refraining order, obtain a court date for the motion to change the support order.

[20] Subsection 35 (19) of the Act sets out other termination dates for refraining orders as follows:

Duration of order

(19) An order to refrain terminates on the earliest of,

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

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

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

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

[21] If the refraining order has not automatically terminated due to the payor's failure to obtain a date for a motion to change, subsection 35 (21) of the Act permits the court to extend the refraining order, for one further three to six month period, depending on the facts. The motion to extend the order must be made before the original order expires (subsection 35 (22) of the Act).

[22] The father did not bring an extension motion.

[23] A refraining order can also be changed pursuant to subsection 35 (10) of the Act if there has been a material change in circumstances and the motion to change has not been completed.

[24] The father did not bring a motion to change the refraining order.

[25] Most importantly, the father did not bring a motion to change the support order of Justice Brownstone, as required in the Refraining Order. Accordingly, the Refraining Order made by Justice Zisman on August 30, 2017, terminated automatically on September 19, 2017.

[26] As of September 19, 2017, the Director had the authority to direct the Registrar of Motor Vehicles to suspend the father's driver's licence.

[27] However, the Director did not take this step. Instead, the Director attempted to negotiate a payment agreement with the father.

[28] When an agreement couldn't be reached, the Director sent the father the Final Notice pursuant to subsection 36 (1) of the Act. That subsection sets out that the Director may send this notice if the payor fails to comply with the terms of a refraining order – in this case the payment terms.

[29] The Director was under no obligation to send the father a Final Notice as the Refraining Order had already terminated. Counsel for the Director explained that this decision was made since the parties had been negotiating a settlement – the Final Notice would give the father one more opportunity to enter into a payment agreement satisfactory to the Director.

[30] Subsection 36 (2) of the Act provides that a Final Notice can be sent to a payor within 24 months of the date of a payment agreement with the Director made in response to a First Notice, the date of a refraining order, or the date of a new support order obtained pursuant to a motion to change, if the payor fails to comply with the agreement or orders. In this case, the Director sent the Final Notice to the father within the required 24-month time frame.

[31] The father did not meet any of the conditions set out in the Final Notice.

[32] Section 36 of the Act does not contain a provision permitting the court to make a refraining order in response to a Final Notice that was sent to the father within 24 months of the making of the Refraining Order.[3]

[33] Subsection 37 (2) of the Act permits the Director to direct the Registrar of Motor Vehicles to suspend a payor's driver's licence if, within the 15-day period referred to within the Final Notice, the payor does not pay the support arrears or make a payment agreement satisfactory to the payor.

[34] The mechanism for the reinstatement of a driver's licence suspended as a result of a direction under section 37 of the Act is set out in section 38 of the Act as follows:

Direction to reinstate

38 (1) 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 an order to refrain that has not expired;

(d) the support order has been changed and the payor is complying with the terms of the changed support order, including the terms of any order under clause 35 (14) (b) that relates to the support order;

(d.1) 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; or

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

[35] None of the conditions for reinstatement of the father's driver's licence were met.

[36] To summarize, it is important to know the following about the court's jurisdiction to make refraining orders:

a) A refraining order can only be made with respect to a First Notice. It cannot be made in response to a Final Notice.

b) The refraining order must be obtained within the 30-day period referred to in the First Notice. This time period cannot be extended by the Director or the court.

c) If the 30-day period referred to in the First Notice expires on a day when court offices are closed, the last day that the court can make a refraining order is the last day on which court offices are open before the 30-day period expires.

d) If the payor does not obtain a court date for a motion to change within 20 days of obtaining the refraining order, the refraining order is automatically terminated. If this happens, no further notice to the payor is required for the Director to direct the Registrar of Motor Vehicles to suspend the payor's driver's licence.

e) The refraining order also terminates on the earliest of the dates set out in subsection 35 (19) of the Act. If this happens, no further notice to the payor is required for the Director to direct the Registrar of Motor Vehicles to suspend the payor's driver's licence.

f) If the refraining order has not been automatically terminated due to the payor's failure to obtain a date for a motion to change within 20 days, it may be extended, on motion to the court that made the order, for one further three to six month period, depending on the facts. The motion to extend the order must be heard before the order expires.

g) If the payor fails to comply with the payment terms of a refraining order, a payment agreement with the Director made in response to a First Notice, or the terms of a new support order made pursuant to a motion to change, the Director may send a Final Notice to the payor within 24 months of the date of the agreement or court orders. The court cannot make a further refraining order if this happens. The payor must either pay the arrears, bring the court order or agreement into good standing or enter into a payment agreement satisfactory to the Director.

h) If more than 24 months have elapsed from the making of any such agreement or court order, the Director is required to send the payor a First Notice – not a Final Notice. In this event, the payor does have the right to move for a refraining order.

Part Four – Conclusion

[37] The father's motion for a refraining order is dismissed for lack of jurisdiction.

[38] The father still has steps he can take to keep his licence or have it reinstated if it is suspended. He can pay all the support arrears or enter into a payment agreement satisfactory to the Director. He can also bring a motion to change Justice Brownstone's order and attempt to obtain a new support order. If he is in compliance with the terms of any payment agreement with the Director or a new support order, the Director is required under section 38 of the Act to direct the Registrar of Motor Vehicles to reinstate his licence.

Released: November 26, 2018

Justice S.B. Sherr

Footnotes

[1] The Director set out in the Final Notice that the support arrears were $30,229.51.

[2] Subsection 37 (1) of the Act provides that if a payor does not obtain a refraining order, or pay all the support arrears or make a payment arrangement with the Director within 30 days of the date set out in the First Notice, the Director may direct the Registrar of Motor Vehicles to suspend the payor's driver's licence.

[3] If more than 24 months have elapsed from the making of any refraining order, a new support order obtained on a motion to change or a payment agreement reached in response to a First Notice, the Director is required to send the payor a First Notice – not a Final Notice, and the payor does have the right to move for a refraining order.