COURT FILE NO. FO-90451/16 DATE: December 6, 2024

ONTARIO COURT OF JUSTICE

B E T W E E N:

THE DIRECTOR OF THE FAMILY RESPONSIBILITY OFFICE FOR THE BENEFIT OF ALBA IRIS RIVERA

APPLICANT

DIANE GILLIES, for the APPLICANT

- and –

RICARDO ANTONIO MARTINEZ

RESPONDENT

ACTING IN PERSON

HEARD: DECEMBER 3, 2024

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] The default hearing in this matter was heard on December 3, 2024. The applicant (the Director) seeks to enforce the support arrears that have accumulated under the order of Justice Marion Cohen dated February 26, 2014.

[2] The Director seeks a default order against the respondent (the payor) on the following terms:

a) He be immediately committed to jail for 150 days, or until such earlier time as he pays the outstanding support arrears of $92,060.68.

b) He pay ongoing child support of $892 each month, starting on December 8, 2024, failing which he shall be committed to jail for three days for each missed payment, or until such earlier time as he pays them in full.

[3] The payor submitted he cannot afford to make a lump sum payment towards the arrears. He asked the court to make an order that he pay ongoing child support of $892 each month and $108 each month towards his support arrears, for a total monthly payment of $1,000. He opposed any committal term being attached to the default order.

[4] The payor gave oral evidence and was cross-examined at the hearing. The court also relied on his Default Dispute, his financial statement sworn on May 6, 2023 and his Dispute Hearing Brief.

Part Two – Background facts

[5] The payor is the father of two children (the subject children), ages 18 and 15, who live with the support recipient in this case.

[6] The payor deposed that he married another woman in 2012 and has three children with her. His wife and three children, six-year-old twins and a nine-year-old child, lived in El Salvador until July 2024, when the payor said he brought them all to Canada. He said they all live together in a rental apartment. The payor said his wife does not work and goes to school.

[7] On February 26, 2014, Justice Cohen made final orders on an uncontested basis. She granted custody of the subject children to the support recipient. She ordered the payor to pay child support to the support recipient in the amount of $892 each month. This was the Child Support Guidelines table amount for two children, based on an annual income of $60,000 imputed to him.

[8] The payor did not appeal that order. He has never moved to change it or set it aside.

[9] The payor made no support payments for the subject children until March 2023, when the Director started this default proceeding.

[10] The Director issued its Notice of Default hearing on March 9, 2023. At the time, the payor was about $94,800 in arrears of child support.

[11] The payor filed a Default Dispute on May 19, 2023. He was represented by counsel at that time. In his Default Dispute, the payor indicated that he was going to move to change Justice Cohen’s order.

[12] On May 23, 2023, at First Appearance Court, the payor consented to provide the Director with specified financial disclosure.

[13] On July 6, 2023, on consent, a temporary default order was made (the first temporary default order). The payor was required to pay ongoing child support of $892 each month and to pay a lump sum towards the support arrears of $15,000 by August 31, 2023, and a further $15,000 by October 31, 2023, failing which he would be incarcerated for five days for each default. He was also required to provide the Director with further financial disclosure.

[14] The payor made the required ongoing monthly payments in the first temporary default order until December 2023. He paid nothing towards the required lump sum payments.

[15] On December 21, 2023, the Director asked that the payor be committed to jail for his failure to comply with the first temporary default order. The court gave the payor another opportunity to comply with the order.

[16] On March 8, 2024, the court granted a motion by the payor’s counsel to be removed as his counsel of record.

[17] The payor did not attend at court on March 12, 2024. A Bench Warrant with discretion was issued. The payor testified that he had gone to El Salvador for six months to make the necessary arrangements to bring his second family to Canada.

[18] The payor made no ongoing payments under the first temporary default order while he was in El Salvador. He resumed making them when he returned to Canada in July 2024.

[19] On July 3, 2024, on consent, another temporary default order was made (the second temporary default order). The payor was required to pay the ongoing child support payments of $892 each month plus $608 each month towards the arrears, failing which he would be incarcerated for three days for each default. He was ordered to provide more financial disclosure, including his complete income tax returns, proof of his self-employment income and expenses and to provide the Director with copies of his bank statements since July 2023.

[20] The payor made the required payments under the second temporary default order. He did not produce any of the financial disclosure ordered.

[21] On October 9, 2024, this default hearing was scheduled.

[22] The Director filed its updated Statement of Arrears at the hearing. Its contents were not disputed by the payor. The payor’s arrears as of December 3, 2024 are $92,060.68.

Part Three – The payor’s evidence

[23] The payor filed one financial statement in this proceeding, sworn on May 16, 2023. He deposed in that financial statement that his annual income was $60,000.

[24] The payor testified he is a construction worker. He does renovation and demolition work. He said he has operated his own business and has primarily worked for the past two to three months for a friend. He stated that he will sometimes hire people to work with him.

[25] The payor said he operates a cash business. He is paid in cash and pays many of his expenses in cash. He said he pays business and personal expenses through his bank account.

[26] When he was asked how much money he was earning, he said sometimes he earns $500 a week, and at other times, $2,000 a week.

[27] The payor said he owes $247,000 to the Canada Revenue Agency. He was unable to explain why he owes that much. He blamed the person who prepared his tax returns, who he claimed made mistakes.

[28] Despite court orders to provide them, the payor did not produce his 2022 and 2023 income tax returns and notices of assessment. He provided very few bank statements. He provided no pay stubs or any documentary evidence of his income or expenses. He did not file an updated financial statement.

[29] The payor stated he has been going back and forth between Canada and El Salvador. He spent the first half of 2024 in El Salvador. He does not work when he is in El Salvador.

[30] The payor said he has no assets and cannot afford to pay a lump sum towards the arrears.

[31] The payor testified he did not make the lump sum payments he was required to make in the first temporary default order because a contract he expected did not materialize. He said he could not afford to bring a motion to change the support order.

Part Four – Legal considerations

[32] The current statutory scheme governing default hearings is found in section 41 of the Family Responsibility and Support Arrears Enforcement Act (the Act) and rule 30 of the Family Law Rules. The Director may initiate the default proceeding. The Director prepares a statement of arrears. The payor files a financial statement and, if so inclined, a default dispute. The court may hear oral testimony, direct the production of other relevant documentation and add parties to the default proceedings. See: Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825, paragraph 17.

[33] At the hearing, the amount of arrears owed and the payor's ability to pay are the central issues. Subsection 41 (9) of the Act puts the onus on the payor, as follows:

Presumptions at hearing

(9) At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director’s office.

[34] Subsection 41 (10) of the Act sets out the powers of the court on a default hearing as follows:

Powers of court

(10) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor,

(a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears;

(b) discharge the arrears in full by a specified date;

(c) comply with the order to the extent of the payor’s ability to pay;

(d) make a motion to change the support order;

(e) provide security in such form as the court directs for the arrears and subsequent payment;

(f) report periodically to the court, the Director or a person specified in the order;

(g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur;

(h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and

(i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner.

[35] Subsection 41 (11) of the Act states:

No effect on accruing of arrears or other means of enforcement

(11) An order under subsection (10) does not affect the accruing of arrears, nor does it limit or otherwise affect any other means of enforcing the support order.

[36] Subsection 41 (17) of the Act reads:

Imprisonment does not discharge arrears

(17) Imprisonment of a payor under clause (10) (h) or (i) does not discharge arrears under an order.

[37] At a default hearing, the payor must show an inability to pay due to valid reasons. A valid reason is an event over which the payor has no control which renders the payor totally without assets or income with which to meet his or her obligations, such as disabling illness or involuntary unemployment. See: Ontario (Director, Family Responsibility Office) v. Carney, 2004 ONCJ 11.

[38] The payor must also show at a default hearing that they have accepted their responsibilities and placed the child’s interests over their own and has provided frank disclosure to the court. See: Ontario (Director, Family Responsibility Office) v. Labrash, 2002 CarswellOnt 90 (OCJ).

[39] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations. See: Smith v. Pellegrini, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140, (Ont. S.C.); Isaya v. Ozo, 2022 ONCJ 321. The party must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. See: Charron v. Carriere, 2016 ONSC 4719; Ontario (Director, Family Responsibility Office) v. Ramgopaul, 2024 ONCJ 562.

[40] In Ontario (Director, Family Responsibility Office) v. De Francesco, O.J. [2012] 6338, Justice Carolyn Jones further explores the meaning of “valid reason” under subsection 41 (10) as follows at paragraph 21 of her decision:

21 Valid reasons, within the meaning of s. 41(10) of the Act, imply reasons for which the payor cannot be faulted or for which the payor does not bear responsibility in the culpable sense. The court would expect some evidence of circumstances where, despite reasonable, diligent and legitimate efforts by the support payor to comply with the support order, the support payor has been unable to do so for reasons that are not connected with an unwillingness to pay, a lack of effort, a failure to prioritize the support obligation or a deliberate neglect, failure or avoidance on the part of the payor. Evidence relating to the past and present circumstances of the payor, including his financial circumstances since the time of the first default under the order, the manner in which he has applied his available income and assets, and his efforts to secure employment or income during the time that the arrears have arisen will have some bearing upon the determination of the legitimacy of the reasons the payor puts forward for his default under the support order. Circumstances that are beyond the control of the payor, resulting in the payor's inability to pay, would be valid reasons. An illness on the part of the payor, including a mental disorder, rendering the payor completely unable to work on either a full or part-time basis, as in the case before the court, would amount to a valid reason for the payor's failure to pay.”

[41] The court is not required to incorporate the payment terms of the existing support order in its default order. See: DeFrancesco, supra, par. 22.

[42] Inability to pay is not the same as difficulty paying. See: Aitken v. Aitken, [1992] W.D.F.L. 1206 (Ont. Prov. Ct.); Ontario (Director, Family Responsibility Office) v. Ramsay, supra.

[43] Clause 41 (10) (i) of the Act contemplates an order of imprisonment for failure to pay an amount owing at the time the order is made or a failure to make future payments required under the order: See: Saunders v. Saunders, [1987] O.J. No. 1578, 10 R.F.L. (3d) 284 (Dist. Ct.), at para. 11; Fischer, supra.

[44] Enforcement legislation should be viewed as remedial rather than punitive. See: Saunders, supra.

[45] Imprisonment is a last resort. Something more than non-payment is required. The payor’s conduct must demonstrate a willful and deliberate disregard for the obligation to comply with court orders. It is meant as a mechanism to enforce support and not as a means of punishing the payor. See: Fischer, supra.

[46] In Fischer, supra, the court writes at paragraph 25:

Further, the case law and the Act recognize that imprisonment for non-payment is meant as a means of enforcing the support order and not as a means of punishing the payor. The payor must be released upon payment of the amount owed: see s. 41(10) (i). A committal order, imposed as a term of either a temporary or final order in a default hearing, is intended to induce compliance with the payment terms of the order. The prospect of imprisonment hopefully focuses the payor's mind on the importance of making the required payments. The enforcement rationale for imprisonment upon non-payment makes sense only if the payor has the ability to make the payments required by the order: see Saunders, at paras. 11-13 …

[47] The maximum jail time should be reserved for the most severe cases. See: Ontario (Director, Family Responsibility Office) v. Kirkpatrick (2008), 60 R.F.L. (6th) 435 (SCJ); Ontario (Director, Family Responsibility Office) v. Ramsay, supra.

[48] In FRO v. Hennessy, 2022 ONSC 2594, the court set out the following non-exhaustive set of factors (the Hennessy factors) to consider before ordering imprisonment:

1. Pattern of accumulated arrears: it is the pattern of the payor’s non-payment that should be more compelling than the total amount of support arrears owing. At first look, larger sums of support arrears might appear to reflect more blameworthy conduct. However, one must bear in mind that support arrears are relative to the monthly support award: sustained periods of non-payment, whether $100 per month, or $10,000.00 per month can be equally devastating to the recipient. As such, the period of non-compliance is likely more probative to the nature of the payor’s non-compliance than the total quantum owing.
2. Voluntary v. involuntary payments: In reviewing the Director’s Statement of Arrears filed, the court may consider whether the payor’s historic contributions towards the support obligation were made by way of direct payment from the support payor, or by involuntary diversions. Such information might be relevant to whether the payor was making efforts to comply with the terms of the operative support order or playing a game of ‘catch me if you can’.
3. Income source disclosure: Similarly, the court might consider the payor’s history of income disclosure. In some cases, the payor will diligently and voluntarily disclose income sources to the Director or the Recipient, facilitating the prompt garnishment of income streams. In other cases, the payor will not disclose changes in employment, leaving the recipient and FRO caseworker to attempt to chase and locate income sources.
4. Previous findings: It is not inappropriate to review the historic court record, and in particular, any previous court endorsements which speak to the payor’s willingness or unwillingness to accept their obligation to support recipients. For example, if income was imputed to a payor due to a finding of intentional unemployment or underemployment, or because the payor failed to produce the financial disclosure as required, the court may be more likely to find that any non-payment of support was wilful and deliberate in nature rather than as a result of unfortunate circumstance. Likewise, where a default hearing continues after an operative support order has been changed (i.e. under s. 41(22) of the FRSAEA), the court may consider whether any of the periods of non-payment of support were mitigated, excused or forgiven for legitimate reason in the subsequent order.
5. Timeliness of actions of payor: It is not uncommon that a payor does not take steps to commence a Motion to Change proceeding until they have been brought before the court on default notice. However, once the payor indicates that they intend to seek changes to the operative support order, the court may consider whether the payor took bona fide steps to comply with court procedure and seek change on the merits, or whether the payor was simply engaging in further tactics to delay payment to the recipient.
6. Other evidence of prioritization of self over support: In some cases, there may be lifestyle or other financial information before the court which causes the court concern that the payor has prioritized other expenditures over compliance with the support order. It is not inappropriate to consider information relating to the payor’s assets or expenditures, if available, in assessing whether their non-payment is wilful and deliberate.

[49] In Director, Family Responsibility Office v. Masoud, 2021 ONCJ 265, this court wrote that the court must also consider the interests of the children and the support recipient who are not before the court, and the consequences to them of the payor’s failure to meet his support obligations. The court wrote at paragraphs 71 and 72:

[71] In Michel v. Graydon, 2020 SCC 24, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.

[72] It is imperative that courts not contribute to that hardship and to the feminization of poverty by failing to enforce valid and subsisting court orders when a payor does not establish a valid inability to pay and fails to provide adequate financial disclosure – as is the case here.

Part Five – Analysis

[50] The payor was only able to partially rebut the presumption that he has the ability to pay the entire amount of arrears owing immediately. He has dug himself a financial hole. He is in significant debt, including owing money to the Canada Revenue Agency. He has five children and a wife to support.

[51] The payor rents an apartment. He does not own a car. He has no known assets. He is able to meet his needs and the financial needs of his second family but does not appear to have saved any money.

[52] However, the payor did not rebut the presumption that he is able to make the ongoing support payments together with significant lump sum payments towards the existing arrears.

[53] The payor was not a credible witness. He has not acted in good faith regarding his support obligations. He paid nothing for ten years and only made payments when faced with enforcement proceedings. He could not explain why he owed $247,000 to the Canada Revenue Agency. He said it was a mistake, yet he has taken no steps to correct it. This makes little sense.

[54] The payor was not a credible witness. The court does not accept his evidence about his income or about his ability to earn income. The court makes this finding for the following reasons:

a) The payor did not provide the disclosure required to properly assess his income. He did not comply with multiple financial disclosure orders. The disclosure he produced was sparse.

b) The payor failed to provide his complete 2022 and 2023 income tax returns and notices of assessment. This would have included his Statement of Business and Professional Affairs. This was basic disclosure required to meaningfully assess his income. The self-employed have an inherent obligation to put forward not only adequate, but comprehensive, records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Ontario (Director, Family Responsibility Office) v. Salman, 2022 ONCJ 329.

c) The payor failed to provide any meaningful documentation to support his evidence about what he earns. The disclosure he provided was outdated. He provided no business statements or any documentation to show his income and expenses. He was given multiple opportunities to provide this.

d) The few bank statements provided by the payor showed many large deposits and withdrawals. For two months in 2023, he deposited over $40,000 into his account. The payor was unable to credibly explain the source of these funds.

e) One bank statement showed he spent $1,364 at a restaurant on April 17, 2023. This was just after the enforcement proceeding was started. The payor could not explain what this was for.

f) The payor’s lack of financial disclosure has been chronic and intentional. An adverse inference is drawn against him.

g) The payor operates in cash. He essentially says, “trust me”, when he declares what his income is. He has given the court no reason to trust what he says.

[55] The payor has deliberately delayed this proceeding. It has been adjourned several times for him to bring a motion to change the support order. He never did this. He promised to make lump sum payments. He did not do that. Instead, he left Canada for six months during these proceedings and stopped paying any support.

[56] The payor has not acted in good faith and has not come to court with clean hands. He did not pay support for 10 years and has only paid support when forced to do so in these enforcement proceedings.

[57] Any difficult financial circumstances the payor is now facing have been self-created. He chose not to pay child support to the support recipient. He chose not to work when he frequently traveled to El Salvador.

[58] The payor has accepted very little responsibility for his failure to pay support.

[59] The payor has improperly prioritized his own interests to his support obligations. He has also consistently prioritized the interests of his second family over those of his first family.

[60] The evidence informs the court that the payor is capable of earning a good income. He deposed in 2023 he was earning $5,000 each month. This appears to be net income, as there is little evidence that he is paying income tax. His income is likely understated.

Part Six – The default order

[61] This leaves the court to determine what default order is appropriate in these circumstances.

[62] The court’s sympathies lie with the support recipient and the two children residing with her. They have not received a fair amount of support from the payor. The payor has badly failed them and has shirked his financial responsibilities.

[63] It is one of the court’s primary objectives in a default hearing to maximize the enforcement of an order.

[64] The court also has to consider imprisonment as the last resort for enforcement. In making a default order with a term of imprisonment attached, the court should be confident that the payor has the ability to make the payments ordered. The consequences to the payor if the court orders an amount he cannot afford are profound.

[65] Reconciliation of the objective to maximize the enforcement of an order while not unjustly imprisoning a payor for non-payment of a default order is a delicate balancing act for the court. This court prefers to err on the side of caution in balancing these considerations. See: Ontario (Family Responsibility Office) v. Levy, 2016 ONCJ 474. The court will not immediately commit the payor to jail for 120 days, or until all the arrears are paid, as requested by the Director.

[66] However, the court accepts the Director’s position that a committal term should be attached to any payment order and an immediate committal order is warranted in these circumstances. Applying the Hennessy factors, the court finds:

a) The payor has a very poor payment history. Significant arrears have accumulated.

b) The payor has only paid support when compelled to do so in enforcement proceedings. Even then, he has found ways to delay enforcement.

c) The payor has historically not provided complete, timely or accurate financial disclosure.

d) The payor only partially complied with the temporary default orders.

e) The payor has prioritized his own interests over his support obligations.

f) The payor did not proceed with the many opportunities given to him to bring a motion to change Justice Cohen’s order.

g) Other attempts made to enforce Justice Cohen’s order have failed. The payor did not comply with the first temporary default order. He was given extensions to comply with it and failed to do so.

[67] The payor will avoid paying support until the consequences are such that compliance is the preferred option. The order this court makes must have teeth to it if it is to be effective and to achieve long-awaited justice for the support recipient and the two children living with her. This is an appropriate case to impose the last resort of imprisonment.

[68] The court finds that the payor has the ability to access funds to make an immediate lump sum payment towards the arrears. He appears to have friends who lend him money. He is very resourceful. He agreed in 2023 to make two lump sum payments of $15,000. The court will issue an immediate warrant of committal. He shall be imprisoned for 120 days, or until such earlier time as he pays the sum of $15,000. The court will hold the warrant of committal in abeyance until the return date of January 7, 2025, at 2 p.m. This will give the payor the chance to avoid going to jail if he makes this payment.

[69] The payor shall also be required to make annual lump sum payments towards the support arrears of $10,000 by December 1st of each year, starting in 2025. He will be committed to jail for 60 days, for each payment in default, or until such earlier time as they are paid.

[70] The payor shall also be required to pay the ongoing child support payments of $892 each month starting on December 8, 2024. He shall be committed to jail for three days for each payment in default, or until such earlier time as they are paid.

[71] Further, the payor is put on notice that if he fails to pay the ongoing December 8, 2024 support payment, a committal hearing will be held on the return date regarding this payment.

Part Seven – Conclusion

[72] There shall be a final default order on the following terms:

a) Child support arrears are fixed in the sum of $92,060.68, as of December 3, 2024.

b) The payor shall be committed to jail immediately for 120 days, or until such earlier time as he pays $15,000 towards the support arrears.

c) The payor shall be required to pay the balance of the arrears by making annual lump sum payments of $10,000 by December 1st each year, starting in 2025. The payor shall be committed to jail for 60 days for each default of the lump sum payments or until such earlier time as the payments are made.

d) The payor shall also pay the ongoing child support payments of $892 each month, starting on December 8, 2024. He shall be committed to jail for three days, or until such earlier time as the outstanding amounts are paid in full, for each payment in default.

e) The maximum length of time, cumulatively, the payor can be imprisoned under this default order is 180 days.

f) The matter shall return to court on January 7, 2025, at 2 p.m., in person. The warrant of committal arising from the court’s order in subparagraph (a) above shall be held in abeyance and not enforced until then. The payor is also put on notice that if he fails to make the ongoing support payments due on December 8, 2024, a committal hearing will be held on the return date regarding the enforcement of this payment.

g) Nothing in this order precludes the Director from collecting arrears from any other source, including income tax or HST/GST refunds, inheritances and lottery or prize winnings.

h) The payor shall provide the Director with copies of his full income tax returns, including all attachments and schedules, and his notices of assessment by June 30th each year.

i) The Director may serve the payor with any motion for committal by both ordinary mail and email addressed to him at his last known addresses in its records, if he is served within six months. After six months, any motion must be served by special service.

Released: December 6, 2024

Justice Stanley B. Sherr