Ontario Court of Justice
Date: July 29, 2025
Court File No.: Toronto FO-11-55692
Between:
Director, Family Responsibility Office for the benefit of
Ashley Barnes
Applicant
— AND —
Jason Burke
Respondent
Before Justice Debra Paulseth
Heard on June 17, 2025
Reasons for Judgment released on July 29, 2025
Counsel:
Shane Foulds — counsel for the applicant
Johnathan D. Pecchia — counsel for the respondent
Part 1: Overview
This decision concludes a default proceeding which was begun more than three years ago. The hearing was adjourned numerous times and finally held on June 17, 2025.
The applicant (Family Responsibility Office or the Director) is seeking to enforce the child support order made on July 25, 2013, by Justice Waldman of the Ontario Court of Justice. Justice Waldman imputed the payor’s income at $85,000 and ordered child support for two children of $1,232.00 a month, commencing June 1, 2013. The arrears accruing from that order and subsequent cost orders enforceable as child support are $76,891.37, as of June 9, 2025. This was not disputed by the respondent (the payor).
The Director seeks a default order against the payor on the following terms:
He pays the ongoing child support of $1,232.00 a month commencing September 1, 2025, failing which he shall be committed to jail for 3 days for each missed payment, or until the outstanding amount is earlier paid in full.
He be immediately committed to jail for 90 days, or until he earlier pays the outstanding support arrears of $76,891.37 plus the accrued arrears since the hearing date of June 17, 2025.
The payor argues that:
He cannot pay the court ordered support, primarily because the orders of this court to date have been wrong in the amount of income imputed to him.
The proceedings should be stayed due to Canadian Charter of Rights and Freedoms (the Charter) infringements based on his hearing disability and systemic anti-black racism.
In the event that a custodial sentence is imposed by the court, he seeks an Impact Assessment based on race and culture.
The payor provided an affidavit for his evidence in chief and was cross-examined. He also filed financial documents and other documents.
Despite the extensive planning for this hearing, with agreement between counsel on the issues, the evidence and filing deadlines, the payor, by surprise, served a lengthy Notice pursuant to the Canadian Charter of Rights and Freedoms, shortly before the hearing. The Director sought to have these issues dismissed. The court permitted argument and submissions. None were made. The court deals with the merits of these issues in Part 7 below.
Part 2: History of proceedings
The payor in this proceeding was in a relationship with the mother of the children from 2005 until 2011. There are two children: A., born January 16, 2009 and B., born October 25, 2010. The children have always lived with the mother.
On July 25, 2013, the court made a final order of custody, access and child support. The child support was ordered to be $1,232 a month based on the father’s imputed income of $85,000.
On May 9, 2014, father brought a Motion to Change (MTC) the access and child support parts of the final order. The court declined to address these issues and directed the father to his appeal rights.
On December 1, 2015, father brought his second Motion to Change and amended it on April 16, 2016, essentially seeking a joint custody order and expanded access. He also sought a credit for overpayment of child support. The MTC as it related to parenting issues was stayed until the father paid his outstanding costs order of $18,000. There were 5 court appearances dealing with the MTC child support issues. The parties agreed to a Summary Judgment Motion (SJM) and a date was set. On the hearing date, father requested an adjournment which was granted. The SJM was heard on September 20, 2017. A week later father sought by 14B to reopen the SJM arguments to give him an additional 60 minutes of time. This request was denied.
The 2015 MTC was dismissed regarding all of the parenting issues and adjourned regarding the child support issues, pending costs arguments.
On March 13, 2018, costs of $27,000 were awarded against the father on the SJM, including costs against him for related motions. The father was also ordered to pay costs of $3,447.50, relating to time wasted at conferences about support and thus payable and enforceable as support.
Father’s appeal of the SJM was dismissed with costs of $16,000 on September 5, 2018.
The father waited until October of 2019, to revive his MTC the child support. On January 7, 2020, father’s MTC child support was stayed for failure to comply with court orders for costs and for failure to provide basic financial disclosure according to the Family Law Rules (FLR). Father admitted he had not provided financial disclosure since 2016. He also admitted he had not paid any of the outstanding costs orders against him, now totalling almost $50,000. Further costs of $2,550 were ordered against father.
On May 10, 2022, father sought directions from the court by 14B motion, without notice, on “how to proceed regarding the parenting issues.”
On June 3, 2022, the father sought leave to address alleged breaches by the mother of the parenting order of 2013. Leave was granted to the father to bring a motion for enforcement. This motion was scheduled for a hearing on April 11, 2023.
On May 12, 2023, a hearing was scheduled for August 23, 2023, and then adjourned on consent to December 14, 2023. Two days before, father sought to adjourn this hearing.
The court denied this request and directed father to proceed or withdraw. On December 14, 2023, however, the court gave one last adjournment to March 26, 2024 at 2 pm.
Again, the matter was adjourned, peremptory to both parties, to April 22, 2024.
On May 15, 2024, father’s enforcement motion was dismissed with costs against him of $15,000. In the costs decision, the court referred to several negative findings of fact made against the father at the conclusion of the hearing. In describing his conduct as very unreasonable, the court said:
His relentless litigation against the mother and misuse of the court system amounts to abuse and harassment of her.
He is an extremely combative, vindictive, and angry person.
The father is oblivious to how menacing his conduct is; both towards the children and directed at the mother through this litigation. He shows no insight at all into his conduct which if not abusive to both his children and the mother, it is at a minimum incredibly destructive and the singular reason he currently has no in person contact with his children.
He believes he is the victim and finds no fault with anything he has done in the litigation or to his children.
On January 30, 2023, father brought a motion to lift the stay relating to his MTC.
On September 28, 2023, the father’s motion to lift the stay (originally ordered on January 7, 2020) of his MTC child support was dismissed. The court’s reasons included the following:
Father says he has earned less than imputed to him in the 2013 order because “he is deaf and hard of hearing, a condition known at trial but which has negatively impacted his ability to sustain full time employment…and at times he has had to rely on social assistance.”
Father provided no medical evidence to support this claim since the date of the 2013 order.
Father’s chart of personal income included income from three corporations controlled by him. In his March 2021 financial statement, father claims to earn $5,500 gross income from one of the companies and still holds 100% of the shares of the three companies: Snkrbox Inc, 3FT High, and BKE. There is no change here.
In 2015, father was approved for a disability tax credit based on his hearing loss.
Father appealed to the Assessment Review Board for Ontario to have his 2016 property taxes cancelled due to poverty as he was only earning $6,793 a month, $2,125 of which came from his own father who was paying him for room and board.
In March 2020, father filed for bankruptcy, seeking to nullify the outstanding cost orders. Father has not paid any money towards the costs orders. The bankruptcy proceedings were adjourned sine die on October 27, 2021.
Father has prepared but not filed his tax returns for 2020, 2021, and 2022. He has provided copies of returns from 2017, 2018, and 2019. He has not provided the financial disclosure required of a self-employed person. He owns 100% of 3 corporations.
Father has a 99% interest in his home which he values at over a million dollars. He disclosed a mortgage of $788,415.
Father pays $5,942.53 a month in mortgage payments.
Father has not paid any money towards the costs orders, now totalling $49,347.59.
The bankruptcy proceedings were adjourned sine die on October 27, 2021.
As of March 1, 2023, arrears of child support were $55,758.43.
Father claims to need proof of daycare receipts. The order of 2013, however, was for father to pay 50% of the net cost of childcare and thus he is not entitled to a deduction for these expenses.
On the merits of his MTC, the court found:
There was no evidence that his income had decreased due to a degeneration of his hearing.
There was no change regarding the three companies that provided him with income of $5,500.00 monthly.
The court had to impute his income in 2013 as father did not provide full and frank disclosure.
There was no real change in the father’s lifestyle. He is still paying mortgage of $6,000 a month, $550 a month on groceries and $150 for meals outside the home plus $250 a month to a RESP for the children.
Father obtained an order refraining FRO from suspending his driver’s license on October 28, 2019, but he had to pay ongoing child support of $1,232 a month, which he did not do.
The court concluded that payor “appears to prefer his own needs to paying child support”.
The court gave the payor an additional 90 days to file further evidence or his MTC would be dismissed.
On March 11, 2024, the payor’s motion to change his child support was dismissed. Costs of the motion to lift the stay of MTC child support was ordered against the payor of $7,500.
The father/payor has appealed this decision, dismissing his MTC. Neither counsel for the payor nor the payor could or would give this court any current information about this appeal. The court’s own endorsement record indicates that this information was required before setting this hearing date, but finally counsel for the payor indicated that they wanted to proceed.
A copy of an endorsement from Justice Des Rosiers, of the Superior Court of Justice, dated July 23, 2024 indicates that he received a 14B motion from the father as part of the appeal proceeding. Father requested and was granted several orders similar to this court’s orders relating to accommodations for the father’s hearing disability. Justice des Rosiers set out timelines for the necessary appeal steps:
Father has 30 days to file proof that transcripts have been ordered.
Within 60 days following the completion of the transcripts father to file his appeal record and factum; following which, mother has 60 days to file her appeal record and factum.
These timelines must have passed by now but no further information was forthcoming, despite this court’s requests.
On July 30, 2024, a 14B motion by father to this court seeking the release of transcripts of 10 conferences related to the MTC was dismissed with costs against the father of $1,779.75.
Part 3: This Default Proceeding
On June 9, 2022, the Director filed a Notice of Default Hearing, to enforce arrears of periodic payments, as well as costs orders, made as follows:
July 25, 2013: payor to pay $1,232 a month in child support on imputed income of $85,000.
April 4, 2014; costs against the payor of $28,000, payable as support (now paid).
By 14B motion on January 9, 2023, the payor sought an accommodation, by requesting the case be transferred to the North York Family court in Toronto. The parties agreed and the matter was further adjourned to March 30, 2023. On that date close captioning was provided and a temporary default order was made for the payor to pay the ongoing child support order of $1,232 a month and to provide specific disclosure. The payor filed a sworn financial statement indicating income of over $4,000 a month. The temporary order included a committal term of one day incarceration for each payment missed.
On November 14, 2023, the Director sought a warrant of committal based on the fact, undisputed, that the payor had missed 8 payments since the temporary order was made. The court granted a committal order of 7 days incarceration or until $8,436.58 was sooner paid.
This proceeding has been on adjournment for over 3 years. Originally, the payor sought further time to bring his MTC and then for his appeal of that dismissal order. This court asked counsel for the payor repeatedly for information about the status of this appeal, but counsel advises that the payor is acting for himself. The court has no information except for an endorsement referred to above. Counsel for the payor indicated that the payor wanted to proceed with this default hearing.
The third reason for the delay in scheduling this hearing related to the payor’s request for a full “Courtroom Accessibility Audit by the Canadian Hearing Services”. This process began in the spring of 2024 and included a review of the payor’s hearing aids, the actual courtroom space, and the current equipment. Recommendations were made and an additional piece of equipment, the advanced neck loop, was ordered and installed. The payor and his counsel were accommodated in terms of their schedule and follow up testing of the new equipment occurred. A full report was provided on January 7, 2025, and reviewed by the parties and the court.
On February 12, 2025, the court met with the parties and counsel and the accessibility coordinator for the court. A hearing date was selected. The parties agreed on the issues and that all material would be in writing and filed in advance. The Director was only filing the Statement of Arrears and relying on the statutory presumptions. Counsel for the payor indicated the appeal was still outstanding but they wanted to proceed. Counsel for the payor wanted to file an affidavit for the payor’s evidence in chief which was agreeable to the Director and the court. The affidavit along with any written material was to be served and filed 30 days in advance.
On April 16, 2025, a final check in with counsel was held by the court. The accessibility coordinator confirmed that the new piece of equipment had arrived. Counsel for the payor confirmed his client would test the courtroom again.
The court noted that both management and technology support were available throughout the hearing but were not needed.
Best practices as recommended in the report were referenced at the beginning of the hearing. Counsel for the payor confirmed they were ready to proceed.
Communication Access Real Time (CART) services – through closed captioning – were available for all hearings.
Part 4: Evidence
4.1 The Director:
The Director relied on the Statement of Arrears. As of June 9, 2025, the arrears total $76,891.37.
Since the beginning of this enforcement proceeding in June 2022, the payor has made 5 voluntary payments.
4.2 The payor:
The payor described his current situation as follows:
He is a full time student at OCAD, studying in the Masters of Design program, with a focus on the Black Aesthetic. He has had OSAP loans and grants, and scholarships since 2019.
He describes his skills and experience as: freelance art director, creative director, influencer, model, stylist, and more recently in the design service area. He solely owns three companies, through which he provides these services.
He has been unable to obtain or sustain employment due to the failure of various businesses to provide adequate accommodation for his hearing loss. This has led to two claims by him to the Human Rights Tribunal of Ontario. One is still active and the other resulted in a mediated settlement.
He has a further outstanding HRTO claim against a local law firm and FRO relating to race and disability discrimination.
He volunteers as a soccer coach. He requires access to a car in order to drive to games.
He also needs a car to drive his father to medical appointments.
His father gives him $2,125 a month. His mother and sister lend him $600 a month. He is repaying them at the rate of $200 a month.
He volunteers with Not-For-Profits by conducting legal research to combat Anti-Black Racism and systemic discrimination based on disability.
He has three companies; the same companies that have been referenced in previous proceedings. He reports their past liabilities and assets but has not provided the last three years of Canada Revenue Notices of Assessment.
In August of 2024, despite ongoing disclosure requirements, the payor filed with Canada Revenue Agency (CRA) four years of income tax returns for 2020, 2021, 2022, and 2023. His stated income is $44,884 for 2020, $27,567 for 2021, $20,339 for 2022, and $3,499 for 2023.
In 2020, the last year for which there are CRA Notices of Assessment for both personal and business, the total income is almost $80,000.
The payor deposed that his accountant tried to file his 2024 tax return electronically on April 30, 2025, but it was rejected due to the payor’s ongoing bankruptcy proceedings.
The payor makes general statements that he has been unable to obtain nor sustain employment due to his disability and due to racial discrimination.
In terms of employment opportunities, the payor filed:
CRA Notice from October of 2015 advising that he was eligible for the disability tax credit from 2011 onward, due to his hearing disability.
Letter from a person identifying herself as a doctor, from May 2019, without the letterhead or credentials, advising that the payor has a degenerative condition that significantly affects his hearing.
Letter from a vocational rehabilitation director, dated October 2019, who reviewed the payor’s academic credentials and experience, noting he has a bachelor’s degree, several post graduate diplomas and certificates, and has held managerial positions with several large companies in the areas of marketing and human resources. This person also noted the significant hearing loss as a liability. The payor was dismissed from 5 jobs from 2012 until 2019. The payor’s most successful employment was for two years with Coach Canada where he worked full time and then part time and then quit to enroll in college in December 2018.
The payor filed a Financial Statement, sworn on May 20, 2025. The following information is in this sworn document:
The payor has self-employment income of $1,823.74 a month.
The payor pays his mortgage of $5,942.53 a month and related taxes, insurance and repairs, totalling $6,552.31 a month. His utilities, relating to this house and cell phone total $735 a month.
His groceries are $600 a month. His school fees are $413 a month for Ontario College of Arts and Design (OCAD). He deposits $250 a month for his two children’s RESP. His monthly expenses exceed his monthly income by over $7,000.
His home is worth $1,050,000. He is a 99% owner of the home. The mortgage is about $783,000.
He owns $2,500 in collectibles: sneakers, trading cards, and comic books.
He has over $3,500 in his small business account and over $100,000 in investments.
Most of his debts are for legal fees and personal family loans.
In cross-examination, further information was highlighted; such as:
The payor now has a registered disability savings plan worth almost $90,000, through a federal program. His last contribution was about 3 or 4 years ago of $3,500.
The payor has more than $200,000 in equity in his home.
The payor’s expenses total over $100,000 a year.
Justice Waldman, the trial judge in 2013, found that the payor focused on his own needs and not his children’s. He also disobeyed court orders and moved money through his three companies (the same companies he currently has). He admitted to deducting personal expenses from his corporate accounts.
The payor’s multiple attempts to change his child support obligations have all been unsuccessful.
The payor uses the same information repeatedly and Justice Sager, who heard the Motions to Change and the Stay motions, found that he continually wants to relitigate the original order of 2013. Justice Sager also found that his evidence was outlandish with a blatant disregard for the truth.
In the appeal, Justice Kiteley found that father was relentless in pursuing his narrative, “just as Justice Waldman had predicted and Justice Sager confirmed”.
The payor’s financial statements look much the same; his debt has not increased; the size of his mortgage has decreased.
The payor made no voluntary payments towards child support this year.
When the payor was found in breach of the temporary default order in this proceeding, his parents paid his arrears. Also, there were federal diversions of over $8,000.
The payor does not know the status of his own appeal. He is acting for himself on this appeal and it is currently still before the SCJ in Toronto.
The payor still has 5 outstanding HRTO claims.
Part 5: Legal considerations
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 (FLR). 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 payor is usually asked to provide proof of income. 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.
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.
- 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.
- 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.
- 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.
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.
The payor must also show at a default hearing that he or she has 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.
In Ontario (Director, Family Responsibility Office) v. De Francesco, [2012] O.J. 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.
The court is not required to incorporate the payment terms of the existing support order in its default order. See: DeFrancesco, supra, para. 22.
In determining ability to pay, the payor must give priority to child support before consumer debts. See: Baumann v. Clatworthy, (1991) 35 R.F.L. (3d) 200 (Ont. Gen. Div.). Support arrears also take priority over judgment debts and unsecured debts. See: Subsection 2 (3) of the Creditor’s Relief Act.
Inability to pay is not the same as difficulty paying. See: Aitken v. Aitken, 1992 ONCJ 7171.
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 ONSC 8295, para. 11; Fischer, supra.
Enforcement legislation should be viewed as remedial rather than punitive. See: Saunders, supra.
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.
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 …
The maximum jail time should be reserved for the most severe cases. See: Ontario (Director, Family Responsibility Office) v. Kirkpatrick, 2008 ONSC 49331.
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:
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.
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’.
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.
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.
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.
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.
In Director, Family Responsibility Office v. Masoud, 2021 ONCJ 265, Justice Sherr 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 6: Analysis and Findings
Despite the payor’s criticism of the orders that form the basis of the Statement of Arrears, there is no real dispute with its accuracy.
Accordingly, the presumptions in the statute apply and the onus is on the payor to provide evidence of his inability to pay.
The payor lacks credibility:
His answers to questions were rambling and mainly unresponsive.
He has been very slow to provide the disclosure that was requested of him.
He breached the temporary order in this proceeding.
He then filed hundreds of pages that do not relate to this proceeding.
In the face of several court orders, the payor did not file his income tax returns for the years 2020-2023 until August of 2024.
He has delayed these proceedings while not taking steps to move his Motion to Change along.
He has delayed these proceedings while pursuing an appeal without providing evidence of its status or even whether he has perfected it.
He has made very few voluntary payments towards the growing arrears of his child support obligation.
The following facts are particularly relevant to the issue of “valid reason not to pay”: the payor
owns a home with available equity,
has not provided any reason why he is not earning some money, but continues to attend college, now in his 7th year at OCAD,
pays his mortgage monthly, which is a significant sum of almost $6,000 a month,
has made very few voluntary regular child support payments,
pays into an RESP monthly for his children,
has $90,000 in a registered disability savings plan, and
has made no lifestyle changes.
The payor’s conduct “demonstrates a willful and deliberate disregard for the obligation to comply with court orders” to pay child support and costs. He has prioritized his needs before those of his children by sustaining a monthly budget in excess of $7,000 and paying a monthly mortgage of $5,000 but not paying child support.
The payor has also had several opportunities to explain how he enjoys the lifestyle he does on his limited income but has failed to do so, including in this hearing.
Part 7: The Court’s Accommodations
The court should make every effort to ensure that all participants have equal access to the proceeding and can meaningfully participate.
It is understandable that the payor and his counsel took every step to ensure that the payor’s disability was accommodated.
The court agreed with all of the payor’s requests that were within this court’s jurisdiction:
CART or real time transcription for every appearance;
CART notes to be available as soon as possible after the court appearance;
All evidence in writing and provided in advance;
The independent assessment of the courtroom to meet the payor’s needs;
Follow-up on all recommendations of the assessment;
An opportunity for the payor and his counsel to test the equipment;
The hearing was not set until his counsel was satisfied that payor’s requests regarding his disability were met; and
The hearing was monitored by local court service management and technology support, in case adjustments were needed.
There was a significant delay in providing the CART notes from one appearance in this proceeding on March 30, 2023. This is the only example of a delay caused by CART notes. At that stage of the proceeding, the case was being adjourned with a temporary default order for the payor to complete his Motion to Change and provide the necessary disclosure.
On June 14, 2023, the court responded to the 14B motion brought by the payor seeking accommodations – all of which were granted, except for those items that needed to be discussed on the return date of June 19, 2023; specifically, dealing with the amount of time in advance material needed to be filed in writing. This issue was resolved on consent at that time and on all future appearances.
A further 14B motion by the payor on March 12, 2024, resulted in orders requesting CART notes as soon as possible after appearances. Both parties agreed at that time to delay the default hearing until after the Motion to Change was heard.
The payor has raised numerous Canadian Charter of Rights and Freedoms challenges relating to failure to accommodate his disability in this and other proceedings.
The Director has argued that the Charter breaches alleged by the payor are really collateral attacks on other orders.
In reviewing the caselaw on this issue, the court is guided by the appellate decision in Family Responsibility Office v Peter Karl Roscoe, 2005 ONCA 4467, where the court said:
An order must be attacked in the same judicial proceeding in which it was made… and
relied on these comments of the SCC in Canada (Human Rights Commission) v Taylor, 1990 SCC 26: the order continues to stand unaffected by the Charter violation until set aside.
This court can only address the issue in this proceeding and based on the above findings, dismisses the Charter arguments.
The payor also raised institutional anti-black racism as a reason for his inability to participate in this proceeding and possibly as a valid reason for his inability to pay child support. No examples or evidence about these allegations were given to the court. Without the most basic of grounds that are required, the court dismisses this claim. See Hartmann v Amourgis, 2008 ONCJ 3515.
The late-breaking Charter arguments were just another example of a smokescreen thrown out by the payor in order to cause chaos and delay. These tactics have worked in the past such that he has avoided his child support obligations almost entirely. This must stop now.
It has long been said by all levels of court that litigation must be decided once and for all.
Part 8: Conclusion on Ability to Pay
- Based on the above findings, the court finds that the presumption of ability to pay has not been rebutted by the payor.
Part 9: The default order
The court has a duty to maximize the enforcement of the order.
The support recipient and the two children residing with her deserve this court’s respect for the valid orders made to date. The support recipient has been forced into years of unnecessary litigation and still cannot rely on this payor’s financial support or even recovery of a modest amount of her costs.
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.
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. See: Ontario (Family Responsibility Office) v. Levy, 2016 ONCJ 474.
Based on the findings above, 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 terrible payment history. Significant arrears have accumulated.
b) The payor has been unwilling to pay child support.
c) The payor has repeatedly criticized the original order of 2013, despite not pursuing an appeal and being unsuccessful in two Motions to Change.
d) The payor has historically not provided complete, timely or accurate financial disclosure.
e) Previous findings have been made that the payor has delayed and impeded the support recipient’s efforts to obtain and collect support.
f) The payor has demonstrated little regard for court orders.
g) The payor has prioritized his own interests over his support obligations.
h) Other attempts made to enforce this order have failed.
i) The payor does not have identifiable revenue sources from which the Director can directly deduct monthly arrears payments.
j) The payor avoids paying support until the consequences are such that compliance is the preferred option.
k) The order this court makes must be effective.
- The court concludes that this is an appropriate case to impose the last resort of imprisonment. The payor has left the court, through his own conduct, with no other option.
Part 10: Conclusion
There shall be a final default order on the following terms:
Child support arrears are fixed in the sum of $78,123.37 including the payment due on July 1, 2025 of $1,232.00.
The payor shall be committed to jail immediately for 90 days, or until such earlier time he pays the arrears.
The payor shall also pay the ongoing child support of $1,232.00 each month commencing August 1, 2025. For each default in payment of this ongoing obligation, he shall be committed to jail for 3 days, or until such earlier time as the outstanding amount is paid in full.
The maximum length of time, cumulatively, the payor can be imprisoned under this default order is 180 days.
Nothing in this order precludes the Director from collecting arrears from any other source, including income tax or HST/GST refunds and lottery or prize winnings.
The payor shall provide the Director with copies of his personal and business full income tax returns, including all attachments and schedules, and his notices of assessment by June 30th each year.
The Director may serve the payor with any further 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: July 29, 2025
D. Paulseth