COURT FILE NO.: CV-12-2104-00
DATE: 20120628
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Warren Jeffery (Applicant)
v.
(Ontario) Director, Family Responsibility Office (Respondent)
BEFORE: Daley J.
COUNSEL: Peter B. Cozzi, for the Applicant
Deann Nixon, for the Respondent
HEARD: June 15, 2012
E N D O R S E M E N T
[1] The applicant seeks various declaratory relief and an order prohibiting the respondent, (Ontario) Director, Family Responsibility Office (FRO) from enforcing or attempting to enforce against the applicant any support arrears or costs which he claims were extinguished by the order of Ricchetti J. of April 11, 2011.
[2] The applicant had been making regular payments in respect of his support obligations in accordance with the terms of prior court orders. In particular, in the period between October 1, 2009 and March 1, 2010 the applicant had been making payments toward his support obligations in the amount of $4,725.25 per month.
[3] On March 9, 2010, the applicant made a payment to FRO in the sum of $4,725.25, however, on March 12, 2010, payment in respect of that sum was rejected by the applicant's bank on the basis of non-sufficient funds (“NSF”) in his account.
[4] At some point prior to the applicant's bank rejecting the request for payment based on NSF, the respondent had paid to the applicant's wife the amount of $4,725.25.
[5] By order of April 11, 2011, and on consent, the applicant and his wife resolved certain issues in dispute between them and the consent order of Ricchetti J. provided in paragraph 1:
All child and spousal support arrears and all costs payable by the applicant to the respondent are extinguished.
[6] The order did not refer to any monies owing by the applicant to FRO directly, in its own right.
[7] On May 9, 2011 the applicant and his wife executed a Notice of Withdrawal from the Family Responsibility Office which was sent to FRO on July 11, 2011 by counsel for the applicant.
[8] On June 16, 2011 FRO adjusted the statement of arrears relating to the applicant's liability to pay support and removed all the arrears of support owing by the applicant to his wife.
[9] The records before Ricchetti J., included an affidavit sworn by the applicant's wife dated March 11, 2011. The affidavit included as an exhibit a Statement of Arrears from FRO which included arrears of periodic payments outstanding of $91,325.25 as well as an administration fee of $810 and NSF amount of $4,725.25.
[10] Following the order of Ricchetti J., FRO continued enforcement proceedings against the applicant. The applicant states in his affidavit, filed in support of this application, that he attended before the Court on August 2, 2011 in St. Catharines in relation to the respondent's continued enforcement proceedings. In his affidavit the applicant indicates that this matter came before Scott J. and at that time leave was granted to the respondent to withdraw any default claim in respect of the applicant. The applicant states that he was informed that there would be no further enforcement proceedings continued against him. Attached to his affidavit is a copy of endorsement of Scott J. dated August 2, 2011 which simply indicates: "warrant is withdrawn...leave to withdraw the default is granted."
[11] It was not asserted by counsel on behalf of the applicant that in view of the order of Scott J. matters at stake on this application are res judicata as between these parties.
[12] Subsequent to this order, the respondent FRO continued enforcement proceedings by delivering to the applicant a Support Deduction Notice dated December 5, 2011.
[13] It is the position of the applicant that in view of the order of Ricchetti J., and the Notice of Withdrawal delivered by the applicant and his wife to FRO in July, 2011, FRO cannot pursue the applicant for recovery of the support amount paid by it to the applicant's wife in the sum of $4,725.25, which support was based on an NSF payment by him.
[14] It is the position of the respondent that the relief sought by the applicant is in the nature of injunctive relief and that as FRO is a Crown agent, the Court has no jurisdiction to grant such relief. Further, it is the position of the respondent that FRO has a separate and distinct right of recovery in these circumstances unconnected with any obligation of the applicant to pay support.
Analysis:
[15] It was submitted on behalf of the respondent that FRO is an agent of the Crown and thus an injunction should not be granted in these circumstances, based on s. 14 (1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27, which reads as follows:
No injunction or specific performance against Crown
- (1) Where in a proceeding against the Crown any relief is sought that might, in a proceeding between persons, be granted by way of injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance, but in lieu thereof may make an order declaratory of the rights of the parties.
Limitation on injunctions and orders against Crown servants
(2) The court shall not in any proceeding grant an injunction or make an order against a servant of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown that could not have been obtained in a proceeding against the Crown, but in lieu thereof may make an order declaratory of the rights of the parties.
[16] No evidence was offered by the respondent with respect to the nature and status of the respondent so as to allow for a determination as to whether or not FRO is an agent of the Crown.
[17] The legislation governing the respondent is the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (the "Act").
[18] The applicant relies upon s. 16 of the Act in his assertion that the respondent has no means of taking any further enforcement steps against him in view of the order of Ricchetti J. and given that the applicant and his wife filed with FRO a Notice of Withdrawal from FRO in July, 2011.
[19] Section 16 reads as follows:
Withdrawal of orders
- (1) A support order or support deduction order filed in the office of the Director may be withdrawn at any time, as described in subsection (1.1), unless the support order states that it and the related support deduction order cannot be withdrawn from the Director’s office.
[20] The applicant also asserts that the respondent is not entitled to pursue any enforcement steps against the applicant in view of the provisions of s. 8 (1) and (2) of the Act which read as follows:
Director’s discretion
8.1 (1) Despite section 5 and subject to section 8.3, the Director has discretion to discontinue enforcement of a support order or support deduction order that is filed in the Director’s office if,
(a) the payor notifies the Director in accordance with subsection 8 (4) that the support obligation has terminated;
(b) the Director serves on the recipient a request to confirm or deny that the support obligation has terminated; and
(c) the recipient does not respond within 20 days after being served. 2005, c. 16, s. 3; 2009, c. 33, Sched. 8, s. 2 (5-7).
Written response
(1.1) For the purposes of clause (1) (c), the response must be in writing. 2009, c. 33, Sched. 8, s. 2 (8).
Reinstatement
(2) If, after enforcement has been discontinued in accordance with subsection (1), the Director receives a written notice from the recipient denying that the support obligation has terminated, the Director may resume enforcement.
[21] It is the position of the respondent that neither s. 8 nor 16 apply in this case to the monies in question, namely the monies related to the NSF cheque provided by the applicant to the respondent.
[22] In the respondent's position that the applicable portions of the Act are ss. 57 and 58 which read as follows:
Application of payments
- (1) Money paid to the Director on account of a support order or support deduction order shall be credited as prescribed by the regulations. 1996, c. 31, s. 57 (1).
Same
(2) Despite anything in this Act, the payor shall not be credited with making a payment until the money for that payment is received by the Director and if a payment is made but not honoured, the amount of the payment shall be added to the support arrears owed by the payor. 1996, c. 31, s. 57 (2).
Fees
- (1) The Director shall not charge any fee to any person for his or her services except as provided by regulation. 1996, c. 31, s. 58 (1).
Enforcement of orders to collect fees, etc.
(2) The Director may continue to enforce a support order or support deduction order to collect an amount described in subsection (3), even if,
(a) the support order or support deduction order to which the amount relates has been withdrawn from the Director’s office;
(b) there is no current support obligation, and there are no arrears, or any arrears are rescinded by a changed support order; or
(c) the support obligation has terminated and there are no arrears, or any arrears are rescinded by a changed support order. 2005, c. 16, s. 33.
Same
(3) Subsection (2) applies with respect to,
(a) fees;
(b) costs awarded to the Director by a court;
(c) any amount owed to the Director as reimbursement for money paid to a recipient; and
(d) any amount similar to the ones described in clauses (a), (b) and (c) that is owed to a support enforcement program in a reciprocating jurisdiction, if the support order to which the amount relates is registered in Ontario under the Interjurisdictional Support Orders Act, 2002. 2005, c. 16, s. 33.
[23] Notably, s. 57 (2) of the Act states that:
...despite anything in this Act, the payor shall not be credited with making a payment until the money for that payment is received by the Director and if a payment is made but not honoured, the amount of the payment shall be added to the support arrears owed by the payor.
[24] In my view, the NSF amount of $4,725.25 amounts to a payment "made but not honoured" by the respondent on March 9, 2010. This amount was added to support arrears owed by the respondent and s. 57 (2) does not specifically state the amount is owed to the recipient, namely in the applicant's wife.
[25] In my view, the NSF amount is owed to the respondent, as reimbursement for monies already paid out to the recipient, the applicant's wife, pursuant to s.s. 58(2) (a), (c) and 58 (3) (a) and (c) of the Act.
[26] It was submitted on behalf of the applicant that the respondent must stop enforcing court ordered support arrears for a recipient spouse upon receiving an order terminating a support obligation. It is further submitted that the right of the respondent to enforce support only is available if there is an existing and unsatisfied order for support. As a general statement that is correct, however the facts in this case are entirely different.
[27] In considering the respondent's rights, in its own capacity, Quigley J. in the decision Ontario (Director, Family Responsibility Office) v. Kitching 2007 CarswellOnt 3208, noted as follows at para. 17:
...There can be no doubt that the Order of Discontinuance issued by Speyer J. implementing the Minutes of Settlement between the parties certainly binds Scott Kitching and Janet Kitching respecting child support and spousal support matters as between them. However, the Director of the FRO was not a party to that agreement. Amounts that were due and owing to the FRO, in its own capacity, as distinct from its capacity as the collection agency for the arrears due to Ms. Kitching, were neither dealt with in any way in the Minutes of Settlement, nor as such, could they have been dealt with in any way in the order of Speyer J. that implemented those Minutes of Settlement. There was no privity of interest of the Director of the Family Responsibility Office to the contractual arrangements that were entered into between these parties that could deprive the Director of its independent standing to pursue its entitlement to collect on the costs that had previously been awarded to it, not only by a court of inferior jurisdiction, namely, the Ontario Court of Justice, but indeed, a court of superior jurisdiction to that of the Superior Court, namely, the Ontario Court of Appeal.
[28] In my view these observations of Quigley J. are most apt in the circumstances of this case.
[29] The order of Ricchetti J. of April 11, 2011 was made on the consent of the applicant and his wife Marilyn Day. The respondent was not a party to that proceeding and any statutory rights it has, which are distinct from its capacity as the collection agency for arrears of support that are due, were not adjudicated nor dealt with by the court.
[30] Further, for these reasons I am of the view that s.s. 57 and 58 provide the respondent with clear jurisdiction to continue to enforce a support deduction order in spite of an order rescinding the support order and the withdrawal of the support requirement by the parties from the respondent, in view of the provisions of s. 58.
[31] It is clear that the legislative intention was that the respondent's rights to continue collection of monies such as arising where an NSF cheque is provided to the respondent, upon which support is paid out, shall continue so as to allow the respondent to enforce and recover any such monies owing to it.
[32] For these reasons, the application is dismissed.
[33] In the event the parties cannot agree on the issue of costs, the respondent shall deliver submissions on costs of no longer than two pages plus a costs outline within 15 days, following which the applicant shall deliver his costs submissions of a similar length within 15 days thereafter.
Daley J.
DATE: June 28, 2012
COURT FILE NO.: CV-12-2104-00
DATE: 20120628
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Warren Jeffery (Applicant)
v.
(Ontario) Director, Family
Responsibility Office
(Respondent)
BEFORE: Daley J.
COUNSEL: Peter B. Cozzi, for the Applicant
Deann Nixon, for the Respondent
HEARD: June 15, 2012
ENDORSEMENT
Daley J.
DATE: June 28, 2012