Court File and Parties

Date: December 17, 2018

Court File No.: D54263/11

Ontario Court of Justice

Between:

SAIFUDDIN AKHTER

HELEN MILLER, duty counsel, assisting the APPLICANT

APPLICANT

- and -

THE DIRECTOR OF THE FAMILY RESPONSIBILITY OFFICE, for the benefit of SADIA RAFIQ

DIANE GILLIES, for the RESPONDENT

RESPONDENT

Heard: December 14, 2018

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The applicant (the father) has brought a motion for an order that the respondent, the Director of the Family Responsibility Office, for the benefit of Sadia Rafiq (the Director), refrain from directing the Registrar of Motor Vehicles to suspend his driver's licence (refraining order).

[2] On April 12, 2012, Justice Harvey Brownstone ordered the father to pay child support of $426 each month for his 8-year old child (the existing order). This was based on an annual income imputed to him of $46,200.

[3] The father has not paid any child support since the existing order was made. There have been some federal diversions of his income tax returns and HST returns. His child support arrears are $30,352.93.

[4] The father's evidence on this motion was sparse. He deposed that his job requires him to drive and he would lose his job if he lost his driver's licence. He claims that the support ordered in the existing order was too high from 2011 to 2014 as he was working part-time and was in school. In his financial statement, the father deposed that he works at a pizza company and earns annual income of about $40,700. He provided no documentation supporting his motion.

[5] The father proposed that he start paying the child support ordered in the existing order together with $200 each month for arrears, starting on January 1, 2019. He undertook to bring a motion to change the existing support order.

[6] The Director asked that the father's motion be dismissed.

[7] On December 14, 2018, the court dismissed the refraining motion and indicated that these written reasons would follow.

Part Two – Legal Considerations

[8] The father's claim for a refraining order is made pursuant to subsection 35(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996 (the Act) that reads as follows:

Order to refrain

35(1) If a payor is served with a first notice under section 34 and makes a motion to change the support order, the payor may also, on notice to the Director, make a motion for an order that the Director refrain from directing the suspension of the payor's driver's licence under subsection 37(1), on the terms that the court considers just, which may include payment terms.

[9] In Turk v. Ontario (Family Responsibility Office), 2016 ONSC 1106, the court set out the following two-part test respecting the making of refraining orders:

a) The support payor must establish that he or she has a prima facie case on his or her motion to change; and

b) The support payor must come to the court with clean hands.

[10] In Hammond v. Ontario (Director of Family Responsibility), 2013 ONCJ 24, the court stated at paragraph 12 that there is no requirement for the payor to show why he or she requires a driver's license. The court noted that Part V of the Act is conspicuously devoid of any criteria for the granting of a refraining order.

[11] In Hammond, the court also stated at paragraph 14 that the onus is on the Director to establish that the payor is not coming to court with clean hands.

[12] In Garneau v. Director, Family Responsibility Office, 2010 ONSC 2804, Quinlan J. refused to grant a refraining order because the payor did not come to the court with clean hands. He had paid no child support for over 18 months.

[13] The provisions in the Act relating to the suspension of a payor's driver's licence are there for a reason – to provide consequences if there is default in payment of support obligations so as to discourage such default. The effectiveness of this provision would be blunted if refraining orders were granted as a matter of course. Courts should look at finances, payment history, timeliness in application, the need for the driver's license and the merits of the claim. See: Locke v. Locke, 2010 ONSC 6055.

[14] In Locke, the court found that there was some merit to the payor's claim. However, in light of the payor's poor payment history and inadequate financial disclosure, the court dismissed the payor's refraining motion.

Part Three – Analysis

[15] There is marginal merit to the father's claim to reduce his support arrears. He claims to have earned lower income from 2011 to 2014 than the income imputed to him in the existing order, but he will have a very uphill battle changing the 2012 court order for the following reasons:

a) Annual income of $46,200 was imputed to him at the April 12, 2012 hearing. It is highly unlikely that he will be able to reduce child support for the period prior to the date of that order. See: Bemrose v. Fetter, 2007 ONCA 637; Nejatie v. Signore, 2014 ONCJ 653;

b) The court in Trang v. Trang, 2013 ONSC 1980, emphasized that orders that impute income matter. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place and they must present evidence of changed circumstances which establish why their representations as to income should be accepted now when they weren't accepted before or why it is no longer necessary or appropriate to impute income.

c) This case was again before the court in 2014 regarding parenting issues and the father's access to the child was terminated. The father had the opportunity at that time to move to change support, but failed to do so. It will be a challenge for him to convince a court that the court should adjust support from 2012 to 2014 at this time. See: Gray v. Rizzi, 2016 ONCA 152. The father provided no explanation as to why he has not moved to change the support order. A logical inference is that he found no need to do so since he has been getting away without paying any child support for many years.

d) The father has been steadily employed for at least the past two years. He has acted in bad faith by failing to pay any child support.

[16] The court considered the father's evidence that he needs his driver's licence to keep his job. However, this is only one consideration for the court in making its decision, and in this case, this factor is significantly outweighed by the father's failure to come to court with clean hands.

[17] This court usually sets a very low threshold to determine if a payor is coming to court with clean hands on a refraining motion. The reality is that many of the payors seeking refraining orders have poor payment histories. The refraining order is a useful enforcement tool. It creates a strong incentive to ensure that support flows to the support recipient. The court prefers, if it is fair in the circumstances, to enforce support so that a payor can keep his or her driver's licence and maintain their employment.

[18] In this case the father has fallen well below this very low threshold. It would not be fair, in the circumstances of this case to grant him a refraining order with payment terms.

[19] Even payors with poor payment histories usually make some effort to meet their support obligations. The father has not paid a penny of support since the existing order was made in 2012.

[20] Justice Brownstone found that the father had the ability to pay the child support ordered in the existing order.

[21] The father has been steadily employed for at least the last two years. He deposed that he is now earning over $40,000 annually.

[22] The father deposed in his financial statement that he spends over $450 each month for alcohol and tobacco – but he hasn't paid anything for child support.

[23] The father failed to notify the Director about his present job.

[24] The father failed to explain why he has not paid any child support or why he failed to notify the Director about his present employment.

[25] The father failed to provide proper financial disclosure for this motion (pay stubs, tax returns).

[26] The father has chosen to actively ignore and avoid his child support obligations.

[27] The court has absolutely no sympathy for the father. The court's sympathies are with the child and his mother who have been financially neglected by him. The father has chosen this path and has acted in bad faith. The denial of his motion for a refraining order is one of the consequences of his selfish choices.

Part Four – Conclusion

[28] The father still has options to keep his driver's licence. He can make an agreement with the Director for payment of the arrears. Practically, what the dismissal of this motion does is take away his bargaining power in making this agreement with the Director. The father will also have an opportunity by way of his motion to change to have his licence reinstated pursuant to the provisions of clause 38(1)(d) of the Act.

[29] The father's motion for a refraining order is dismissed.

[30] The court thanks counsel for their helpful submissions.

Released: December 17, 2018

Justice S.B. Sherr