Ontario (Director, Family Responsibility Office) v. Muslim, 2025 ONCJ 116

Ontario Court of Justice

Ontario (Director of the Family Responsibility Office for the Benefit of Ginette Haacke-Jiminez) v. Mohammed Muslim

Date: March 3, 2025
Court File No.: FO-14203/08
Heard: February 28, 2025
Judge: Justice Stanley B. Sherr

Reasons for Decision

Part One – Introduction

[1] The default hearing in this matter was heard on February 28, 2025. The applicant (the Director) seeks to enforce the support arrears that have accumulated under the order of Justice R. Boyko of the Ontario Superior Court of Justice, dated March 24, 2004.

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

a) He shall pay the sum of $20,000 by March 28, 2025, towards the outstanding arrears of $213,998.82, failing which he shall be committed to jail for 5 days, or until such earlier time as the payment is made in full.

b) He shall pay the balance of arrears by March 28, 2026, failing which he shall be committed to jail for 90 days, or until such earlier time as the payment is made in full.

c) His passports shall either be held by counsel, Anthony Wong, or be deposited into court and held as security until he completely pays the outstanding arrears.

[3] The payor stated he did not dispute the amount of arrears owing. He proposed paying the arrears as follows:

a) $20,000 by March 3, 2025.

b) $2,000 each month, starting on March 1, 2025.

c) $5,000 each month, starting on January 1, 2026.

d) $10,000 each month, starting on January 1, 2027.

[4] The payor’s passports are presently being held by counsel Anthony Wong, pursuant to a consent temporary default order, dated November 25, 2024. The payor opposed any final default order requiring him to surrender his passports as security for payment of his arrears. He said he needed to return to Ghana to generate the funds necessary to make these payments.

[5] The Director’s position is that if the payor is given his passports and goes to Ghana, it has no means to enforce the default order and the chances of collection are remote, as Ghana is not a signatory to the Hague Convention on the International Recovery and Other Forms of Family Maintenance (the Convention).

[6] The payor was given the opportunity to consult with duty counsel prior to the hearing. He declined. He filed two affidavits, sworn February 12 and 24, 2025, a medical report, a reference letter, his income tax statements from Ghana, and a copy of an article he wrote. He gave oral evidence and was cross-examined.

Part Two – Background facts

[7] The payor is 58 years old. He was born in Ghana. He deposed that he came to Canada in 1987 as a Convention Refugee. His application was approved. He is a Canadian citizen.

[8] The payor testified that in 1995 he graduated from Osgoode Law School in Toronto and started his own insurance law practice.

[9] The payor said he married his wife in law school and they have two children, now adults. He said he is still married to her.

[10] The payor had another child, now age 23, with the support recipient. The support recipient started an application in the Superior Court of Justice against the payor for parenting and support orders. The parties entered into Minutes of Settlement, and on March 24, 2004, Justice Boyko made final orders granting the support recipient custody of the child, and requiring the payor to pay the support recipient child support of $1,100 each month, based on his attributed annual income of $149,000.

[11] The payor never moved to change that order. He indicated at this hearing that he had no intention of doing so.

[12] The recipient testified that in 2004 his insurance law practice was failing. He said, “I think I lost my mind, I was devastated”. He said he traveled to Ghana, “to look for money, to look for gold”. He said he returned to Canada later in 2004.

[13] The payor made child support payments to the support recipient in 2004. He also made one support payment to her of $2,821 in June 2015. He did not make another support payment to her until 2024, and only arising from enforcement by the Director. The Director stopped the support accruals for the child on January 1, 2023.

[14] The payor said he “negotiated his resignation” from the Law Society of Ontario in 2006.

[15] On February 27, 2008, the Director issued a Notice of Default Hearing.

[16] On August 28, 2008, Justice Carole Curtis made a final default order. She fixed support arrears at $45,698.82. She issued a warrant of committal for the payor to be imprisoned for 100 days, or until such earlier time as the arrears are paid in full. The order was made on default, as the payor did not attend the hearing.

[17] The payor said he moved to Ghana in 2007 and did not return to Canada until 2024. He said he had no communication during this time with the support recipient. He also had no communication during this time with his wife or his children.

[18] The payor said he went to law school in Ghana and was called to the Bar in Ghana in 2008. He said he practised law in the area of land litigation.

[19] The payor deposed that in 2024 he won a very large land claim for a client and he was given a huge contingency payment of land – 100 acres. He said he decided to return to Canada to surprise his wife, the support recipient and his children and tell them about his good fortune. He said he wanted to make amends.

[20] The payor was arrested upon his entry into Canada on September 26, 2024, pursuant to the outstanding warrant of committal. He spent 60 days in jail.

[21] The payor retained counsel and entered into a consent with the Director. On November 25, 2024, the court made an order suspending the warrant of committal on the following terms:

a) The payor shall pay $12,000 towards the arrears.

b) The payor shall deposit all passports in his possession to his counsel, who shall keep them securely pending further order of the court, or deposit them at the court.

c) The payor shall remain in Ontario and advise of any change in address or phone number forthwith.

[22] The parties consented to the revival of the default hearing.

[23] The payor made the payment required in the temporary default order and was released from jail.

[24] On December 4, 2024, another temporary default order was made on consent, requiring the payor to pay a further $10,000 towards the support arrears by January 30, 2025. He made that payment.

[25] On February 13, 2025, the payor brought a Form 14B motion asking the court to hold an expedited Default Hearing. The court heard that motion in open court on February 18, 2025 and granted the payor’s request. The court scheduled the Default Hearing to take place 10 days later.

Part Three – The payor’s evidence in support of his position

[26] The payor deposed that:

a) He had no knowledge of the default proceedings that resulted in the default order being made until he was arrested entering Canada on September 26, 2024.

b) He did not earn much income in Ghana. There were many years he earned no income. He filed Ghana tax documents showing he generally earned less than $2,000 in Canadian dollars each year. He gave several reasons for his lack of income, including:

i. His poor medical condition. He said he suffers from gastrointestinal issues, has had malaria and has difficulties with concentration and memory.

ii. It takes many years to litigate land claims in Ghana and receive contingency fees. He says he is on the verge of many successful judgments. He said he has 50 active claims. He expects to win some and lose some.

iii. There is considerable corruption in Ghana, which makes it more challenging to practise law.

c) He won a large judgment for a client in 2024. He said his contingency fee was paid in land that is worth about 2.5 million US dollars. However, he has to pay taxes and registration fees to register the land in his name. This will cost him about 5% of the property’s value. He said he needs to sell portions of the property to developers or investors to pay for these fees. He says he needs to be in Ghana to do this. He said if he cannot return to Ghana, he might lose this property and lose his active files. He will then be unable to pay the support arrears.

d) He was able to sell a small portion of this land for $40,000 in US dollars in 2024, and cleared about $25,000 US dollars from the transaction.

e) His health is declining daily and he needs to return to Ghana for medical care.

f) He is living with friends in Canada. If he loses this housing, he has nowhere to go. He is borrowing money from his friends in Canada to survive. He has no ability to earn income in Canada.

g) He acknowledges his support obligation. He wants to make amends and once he pays the arrears, he wants to meet his son.

h) He is an honourable man and the court can trust him to pay the support arrears. He said he is a respected member of the Bar in Ghana.

Part Four – General legal considerations on default hearings

[27] 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, para 17.

[28] Subsection 41 (9) of the Act places the onus on the payor to establish he is unable to pay the arrears.

[29] 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.

[30] 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.

[31] 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.

[32] 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.

[33] 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 ONCJ 62578.

[34] 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 ONSC 46927, Maimone v. Maimone, 2009 ONSC 25981, 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.

[35] In Ontario (Director, Family Responsibility Office) v. De Francesco, 2012 ONCJ 6338, para 21, Justice Carolyn Jones further explores the meaning of “valid reason” under subsection 41 (10):

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.

[36] Inability to pay is not the same as difficulty paying. See: Aitken v. Aitken, 1992 ONCJ 7171, Ontario (Director, Family Responsibility Office) v. Ramsay, 2024 ONCJ 64.

[37] 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.

[38] 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…

[39] 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.
2. Voluntary vs. involuntary payments.
3. Income source disclosure.
4. Previous findings.
5. Timeliness of actions of payor.
6. Other evidence of prioritization of self over support.

[40] 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 – The payor’s ability to pay the arrears

[41] The payor was only partially able to rebut the presumption that he has the ability to pay the entire amount of arrears owing immediately. The payor spent 60 days in jail before he was able to come up with $12,000 to obtain his release. This informs the court that he does not have the ability to pay all the arrears immediately.

[42] However, the payor did not rebut the presumption that he will be able to make an immediate payment of $20,000 and subsequent large lump sum payments to satisfy the arrears. The evidence informed the court that the payor is capable of paying the balance of the arrears over the next three years.

[43] The payor told the court he could pay $20,000 towards the arrears by March 3, 2025. The court will give him until March 28, 2025 to do this.

[44] The payor owns a home in Ghana. He valued it at the hearing as worth $100,000. He can sell that home and apply the proceeds towards the arrears.

[45] The payor now owns 100 acres in Ghana. He valued each acre at $25,000 in US dollars. This comes to 2.5 million US dollars. He said he will need to pay approximately 5% of the value of the land to register it. He stated he might need to sell portions of the land to fund the registration. This still leaves him with more than enough money to satisfy the arrears. The payor agreed on cross-examination that the land will be worth hundreds of thousands of dollars, and that he should be able to get all the money in a year or two.

[46] The payor claimed he now has 50 land claim cases in process (he later said 40 cases). He expects at least 20 of them to be successful. He can apply some of the fees from these cases to pay his support arrears.

Part Six – The surrender of the payor’s passports as security for payment of the arrears

6.1 Legal considerations

[47] The Director asks the court to order the surrender of the payor’s passports, as security for payment of the arrears. It relies on clause (e) of subsection 41 (10) of the Act in support of this request. This clause reads as follows:

(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,

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

[48] The Director submits that the surrender of a passport is a form of security the court may order under the Act.

[49] In Jones v. Hugo, 2012 ONCJ 211, this court reviewed the Ontario Court of Justice’s authority to order a passport to be surrendered as security for support under the Family Law Act (the FLA).

[50] The court found it had the authority to make such an order pursuant to clause 34 (2) (k) of the FLA, which reads as follows:

Powers of court

34. (1) In an application under section 33, the court may make an interim or final order,

(k) requiring the securing of payment under the order, by a charge on property or otherwise.

[51] The court found that holding a passport as security for support fell under the term, “or otherwise”.

[52] The court wrote the following at paragraphs 87 to 90 of its decision:

87. This clause of the Act should be considered and interpreted within the context of the entirety of the Act, as well as other legislation enforcing support orders. One of the objectives of the legislation is to ensure that payors pay support ordered by the court and not abscond from the jurisdiction in order to avoid their support obligation. This is reflected in section 43 of the Act which reads as follows:

Arrest of absconding debtor

43 (1) If an application is made under section 33 or 37 and the court is satisfied that the respondent is about to leave Ontario and that there are reasonable grounds for believing that the respondent intends to evade his or her responsibilities under this Act, the court may issue a warrant for the respondent’s arrest for the purpose of bringing him or her before the court.

Bail

(2) Section 150 (interim release by justice of the peace) of the Provincial Offences Act applies with necessary modifications to an arrest under the warrant.

88. Section 43 of the Act permits the court, by warrant, to have a support payor arrested and brought to the court if it has reasonable grounds to believe that he or she will abscond from the jurisdiction in order to avoid his or her support obligations. The court is permitted under subsection 43 (2) of the Act to impose bail terms. In such situations, the deposit of a passport would likely be a critical term of release.

89. In Tatarchenko v. Tatarchenko, [1999] O.J. No. 2776 (SCJ - Family Court), the court dealt with whether a passport should be released to a support payor who was in default of a support obligation. The payor’s passport had been ordered deposited with the court in 1998, arising out of a concern that he may abscond from the jurisdiction with his children. Subsequently, the payor asked for the release of his passport to travel to his homeland. The court exercised its discretion and refused to release the passport on the basis that the payor was over $7,000 in support arrears. The court refused to release the passport unless the payor either paid the outstanding support arrears or posted a sufficient bond to the credit of the support recipient. The payor argued that the denial of his passport violated the Canadian Charter of Rights and Freedoms, as his right to personal liberty was being infringed. The court relied on section 43 of the Act to reject this argument, and wrote that it was essential for courts to protect the integrity of the court process and ensure that payors do not abscond from the jurisdiction to avoid their support obligations. In essence, the court required the passport to remain deposited with the court to secure the payor’s support obligation.

[90] The court should be cautious before ordering the deposit of a passport into court as security for support due to its restriction on a person’s mobility rights. However, it isn’t an exceptional remedy. The Family Responsibility Office would have had the power to seek a suspension of the respondent’s passport if he had a Canadian passport.

[53] Following Jones v. Hugo, other courts have ordered the surrender of passports as security for the payment of support. See: Sadlier v. Carey, 2015 ONSC 3537, per Justice Carolyn Horkins and in Rubatto v. Sandoval, 2017 ONCJ 921, per Justice Victoria Starr.

[54] In Bouchard v. Sgovio, 2021 ONCA 709, paras 50 and 51, the court observed that subrule 1 (8) of the Family Law Rules also has been applied to order the surrender of passports as security for support and that such a broad and purposeful use of the subrule is sensible.

[55] The analysis applied in Jones under the FLA, and the commentary in Bouchard that it is sensible for courts to take a broad and purposeful approach to enforcement of support orders, are equally compelling under the Act. The purpose of the Act is to enforce valid and existing support orders. That purpose would be defeated unless mechanisms are in place to ensure that payors cannot abscond from the jurisdiction and avoid their support obligations.

[56] The court questioned the Director as to why it didn’t apply to suspend the payor’s Canadian passport pursuant to section 67 of the Family Orders and Agreements Enforcement Assistance Act (FOA). The Director answered this was an option. However, the matter was already before the court and it wanted to avoid a duplication of proceedings and possible conflicting results. Further, the process to suspend a passport under FOA requires a minimum of 40 days. The Director submits there is a high risk, if the payor’s passports were released to him after this hearing, that he would leave the jurisdiction, making any enforcement efforts meaningless.

[57] The court finds it has the authority to order the surrender of the payor’s passports as security for payment of his arrears pursuant to clause 41 (10) (e) of the Act.

6.2 Should the court order the surrender of the payor’s passports as security for payment of the arrears?

[58] This was the most contentious issue in this case. The payor claims he can be trusted to comply with the default order if he returns to Ghana. The Director submits he cannot be trusted to make any further payments once he returns to Ghana and that there is no way it can enforce the order, since Ghana is not a reciprocating signatory to the Convention. Nothing can be done to force the payor to return to Canada.

[59] The payor asked the court to accept his evidence about his present financial circumstances, how he is compensated in Ghana, the obstacles he faces in being compensated in Ghana, corruption in Ghana, the Ghanaian legal system for land registration, and the costs he needs to incur to reap his rewards. This information was all based on his oral evidence at the hearing. He provided no corroboration of any of it.

[60] The court does not accept the payor’s evidence. He was not a credible witness. There are many reasons for this finding.

[61] The payor abandoned the support recipient and their child. He paid no child support after June 2005, despite the court order. A logical inference is that he absconded from the jurisdiction to avoid his child support obligations.

[62] The payor also abandoned his wife and their two children. He paid no support for them. He testified his wife thought he was dead. It was apparent he made no effort to contact or assist his family.

[63] The payor avoided enforcement efforts by the Director for over 16 years. The court does not accept his evidence that he had no knowledge of the enforcement proceedings. He knew, or should have known, that the Director would enforce the support order as the order was registered with the Director and his support payments were made to the Director.

[64] The payor gave incredulous evidence about his knowledge of the 2004 child support order. At one point, he claimed he did not remember it. When it was pointed out to him in cross-examination that he had made payments under the order, he claimed his memory was very poor due to his multiple illnesses, and sometimes he remembered the order and sometimes he didn’t. He said when he returned to Canada, he remembered it. He then said, “I wasn’t even sure if I had a son”.

[65] The payor was not transparent about his financial circumstances. He filed affidavit evidence in advance of the hearing about the nominal income he has earned in Ghana and about his poor health. He did not reveal he owned a house worth $100,000 or land worth 2.5 million US dollars in Ghana. He did not reveal he had recently sold a parcel of his land in Ghana and received $40,000 in US dollars. This essential information was only learned in increments during his examination at the hearing. The court draws an adverse inference against the payor arising from his failure to produce disclosure about these assets prior to the hearing.

[66] The court did not find the payor’s evidence about his income in Ghana credible. It accepts he reported nominal income to the authorities in Ghana. However, he was able to support himself in Ghana for 17 years and owns a valuable home. It also strains credulity that he purportedly earned less than $2,000 Canadian a year for many years in Ghana and then obtained a judgment in 2024 that compensated him with land worth 2.5 million US dollars.

[67] The payor gave convoluted answers about why he cannot retain a lawyer or agent in Ghana to sell his properties to pay his arrears. Further, the payor did not provide a good reason why he cannot work remotely on his other land claims and retain a lawyer to conduct the work on the files that must be done in person in Ghana. At its core, it appeared he did not trust any lawyer or agent in Ghana not to steal his properties. He said, “you cannot trust people there”.

[68] The payor gave the court little reason to trust him. It is highly likely that if the payor’s passports are released to him, after he pays a further $20,000, as he proposes, no further support will be collected. The payor plans to return immediately to Ghana. His home is there. He has little motivation to pay these significant arrears or return to Canada, where he would have to deal with these enforcement proceedings. This would be a very unfair outcome to the support recipient and the child.

[69] The payor deposed in one of his affidavits that he had to urgently return to Ghana for medical treatment. The payor provided a medical report from a doctor at Lusenac Hospital in Ghana dated February 19, 2025. He diagnosed the payor with:

1. Chronic Gastrointestinal Bleeding
2. Mallory Weiss Syndrome
3. Recurrent Malaria
4. Recurrent Typhoid Psychosis

[70] The doctor stated the payor had been a patient at the hospital since 2007, his immunity was compromised, and he has low energy and loss of memory. He said the payor is presently on herbal and alternative medicine.

[71] The court did not receive evidence of the doctor’s qualifications.

[72] The report did not set out when the doctor last saw the payor.

[73] The doctor did not provide a prognosis for the payor, or set out how, if at all, the payor’s illnesses impair his ability to work. It did not detail his treatment plan and if the payor has been compliant with his recommendations.

[74] The payor provided no credible evidence that he had to return to Ghana for his medical conditions to be treated. There is no reason his medical conditions cannot be treated in Canada. The payor knows this. At one point during his cross-examination, he claimed he is motivated to return to Canada in the future, as he wants to be able to access the Canadian medical system.

[75] The payor expressed remorse about not paying support. He said he wants to make amends. He has paid $22,000 towards the arrears, albeit in order to be released from jail, and to avoid returning to jail. The court will have more confidence about his sincerity in paying the entire arrears if he makes far more sizeable payments towards them. The court will order that the father’s passports be surrendered as security for payment of his arrears. However, it will set up a process where he can seek a review of this term, once he pays an additional $120,000 towards the arrears.

[76] The payor claimed his Canadian passport expires in August 2025. Subsection 67 (1) of the FOA sets out what steps the Director can take regarding the payor’s licences. It reads as follows:

67 (1) If a debtor is in persistent arrears, a provincial enforcement service may apply to the Minister requesting that the following actions be taken:

(a) that no new schedule licences be issued to the debtor;

(b) that all schedule licences held by the debtor be suspended; and

(c) that schedule licences held by the debtor not be renewed.

[77] The definition of licence in section 62 of the FOA includes a passport within the meaning of section 2 of the Canadian Passport Order.

[78] The court will order that nothing in this order precludes the Director from making an application under section 67 (1) of the FOA regarding the payor’s Canadian passport.

Part Seven – The default order

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

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

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

[82] 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 amounts that he cannot afford are profound.

[83] 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.

[84] The court must also take into consideration that the payor has already served 60 days in jail pursuant to the order of Justice Curtis. The maximum time he can be imprisoned under this order is 120 days.

[85] The court accepts the Director’s position that a committal term should be attached to any payment order in these circumstances. Applying the Hennessy factors, the court finds:

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

b) The payor has also neglected his financial responsibility to his wife and the two children he had with her. His track record for meeting his support obligations is very poor.

c) The payor has only paid support when compelled to do so in enforcement proceedings. He was able to avoid enforcement proceedings for 16 years.

d) The payor did not provide transparent or timely disclosure about his significant assets.

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

[86] The payor will likely avoid paying support unless 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 her child.

[87] The court will order the payor to make the $20,000 payment he assured the court he was able to make by March 3, 2025. It will give him until March 28, 2025 to do this. The 5-day committal term sought by the Director if he defaults on this payment is inadequate to ensure compliance. The court will order that he be imprisoned for 20 days if he defaults on this payment, or until such earlier time as it is paid.

[88] The payor shall also be required to make a lump sum payment of $100,000 towards the support arrears by June 30, 2026. The court finds the Director’s request to have the entire balance of arrears paid by March 28, 2026 is too aggressive and prefers to take a more cautious approach. The payor should be able to, at a minimum, sell his home in Ghana by June 30, 2026. He will be committed to jail for 40 days if he defaults on this payment, or until such earlier time as it is paid.

[89] The payor shall also be required to pay the balance of arrears owing by March 3, 2028. He will be committed to jail for 40 days if he defaults on this payment, or until such earlier time as it is paid.

[90] The payor’s passports shall be surrendered and held by either Anthony Wong, the lawyer presently holding them, or deposited with the court, pending further court order.

[91] The payor may seek a review of the term regarding his passports once he has paid an additional $120,000 towards his arrears. At that time, the court might determine that other forms of security will suffice, or a lesser amount for security of payment of the arrears should be ordered.

Part Eight – Conclusion

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

a) Child support arrears are fixed in the sum of $213,998.82, as of February 24, 2025.

b) The payor shall pay $20,000 towards the arrears by March 28, 2025, failing which he shall be committed to jail for 20 days or until such earlier time as the payment is made.

c) The payor shall pay $100,000 towards the arrears by June 30, 2026, failing which he shall be committed to jail for 40 days or until such earlier time as the payment is made.

d) The payor shall pay the balance of arrears by March 3, 2028, failing which he shall be committed to jail for 40 days or until such earlier time as the payment is made.

e) The payor’s passports shall be held by counsel Anthony Wong, or deposited into the court at 47 Sheppard Avenue West, Toronto, Ontario. They shall not be released to the payor without further order of this court. The Director shall serve this decision on Anthony Wong.

f) The payor may seek a review of clause (e) once he has paid an additional $120,000 towards the support arrears.

g) Nothing in this order precludes the Director from making an application under subsection 67 (1) of the FOA regarding the payor’s licences, including the issuing, renewal or the suspension of his Canadian passport.

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

i) The warrant of committal issued by Justice Carole Curtis on August 28, 2008, is rescinded.

j) The payor is to keep the Director updated about his current address and email address.

k) 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: March 3, 2025

Justice Stanley B. Sherr