ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-00-380-E4
DATE: 2014-09-19
B E T W E E N:
The Director, Family Responsibility Office for the benefit of Nicole Van Westerop,
Allan T. Hirsch, for the Applicant
Applicant
- and -
William G. Van Westerop,
Thomas R. Hunter, for the Respondent
Respondent
HEARD: September 8, 2014,
at Ottawa, Ontario
Platana J.
Decision On Motion
The Background
[1] The Applicant brings this motion asking for a Warrant of Committal for failing to comply with the terms of a Final Default hearing Order on June 5, 2013, which required payment of all costs orders, all arrears (then $855,005.11), and all subsequent accruals of ongoing spousal support. The full amount of arrears at the time of this motion is $899,626.20.
Uncontested Facts:
[2] I accept as uncontested facts the position set out by the Applicant as follows:
(1) A Support Order of Justice Lissaman dated October 16, 2001, was made at an uncontested trial. the Respondent’s pleadings had been struck due to his failure to provide the financial disclosure ordered by the court.
(2) Based upon the wife’s evidence showing a long history of the Respondent hiding assets and income, the court imputed income to him and awarded monthly spousal support of $5,500 per month plus indexation. This is the same amount of support awarded by Justice Mackinnon in a contested motion dated September 21, 2000, wherein both parties were represented by counsel.
(3) The FRO commenced a Default Hearing in December 2010 to enforce the order of Justice Lissaman.
(4) The Default Hearing was adjourned at least ten times over the next two years while the Respondent pursued a Motion to Change. Eventually, Justice MacLean stayed the Respondent’s Motion on March 27, 2013, due to his failure to pay numerous costs orders.
(5) The FRO and the Respondent consented to a final Default Hearing Order on June 5, 2013, which required payment of all costs orders, all arrears (then $855,00511), and all subsequent accruals of ongoing spousal support, by January 15, 2014. The Respondent was represented by his current counsel.
(6) Under the order, the Respondent was effectively given a period of seven months to seek whatever remedies to which he felt entitled relating to his support obligations. However, unless he obtained an order staying or suspending the support order in a proceeding between the recipient and himself, he was to pay the full amount of the arrears and costs accrued thereunder. Failing which, he would face a warrant of committal hearing and incarceration of up to 180 days.
(7) The Respondent brought a motion against the support recipient on December 12, 2013. He asked Justice Smith to “lift” the stay ordered by Justice MacLean, to deem the funds garnished by the FRO to be payment of the Respondent’s costs, and to vary the support order. Justice Smith dismissed the motion and stated that the Respondent would have to ask the Divisional Court for an extension of time to file his appeal. In the meantime, the Motion to Change would remain stayed.
(8) On April 11, 2014, the FRO personally served the Respondent with the present Motion for Warrant of Committal. The hearing date was scheduled for June 16, 2014. The hearing was adjourned to August 11 because the original date conflicted with the Respondent counsel’s vacation. The two-month delay was also to permit the Respondent more time to seek relief in the Divisional Court. In his June 9, 2014 affidavit, the Respondent confirmed that he “instructed his lawyer to bring Motions seeking Leave to extend the time to appeal the orders of Mr. Justice MacLean and Mr. Justice Smith.
(9) The Respondent requested a further adjournment of the Motion for Warrant of Committal on August 11, 2014. Justice Kane denied the request for adjournment and required the matter to proceed. Unfortunately, the case did not get heard due to the length of the motions list.
[3] Counsel for the Director relies on s. 41(10) of the Family Responsibility and Support Arrears Enforcement Act, and Ontario (Family Responsibility Office) v. Buffan, 2012 ONCJ 768, 2012 CarswellOnt 16128, as authority this is not a default hearing de novo, but that the Respondent must demonstrate that there has been a material change in his circumstances since the granting of the order.
[4] Counsel argues that s. 41(9) sets out certain presumptions which have been met. He posits that there is no issue that the Respondent is able to pay, as the order of June 5, 2013, was on consent, and the Statement of Arrears then owing was not disputed.
[5] Counsel frames the issue before me as to whether there has been a change of circumstances since June 5, 2013, the date from which any contempt begins to run: Buffan, para. 44. He submits that only evidence arising after the default hearing, which establishes a material change in circumstances going to the debtor’s ability to pay, will be considered by the court: Buffan, at para. 46.
[6] Counsel for the Director submits that the Respondent’s affidavit materials set out four reasons why he is unable to pay:
i) He has been the sole caregiver for his mother, age 90, since October of 2003. Her heath has been deteriorating and in April 2014, a heart aneurism, and if he is imprisoned, there will be no one to care for her.
ii) After the hearing of June 2013, he attempted to obtain information from the court file of proceedings between himself and the recipient to attempt to reconcile information in that file, with exhibits filed in the uncontested hearing. He states that some of the Exhibits were missing from that court file, which prevents him from confirming that he has paid certain amounts and credit has not been given, some of which were credits against outstanding cost orders.
iii) In December 2013, he brought a motion for variation of the existing spousal support order, and seeking that outstanding costs awards be deemed to be satisfied. That motion was dismissed as an earlier order staying proceedings had not been satisfied or appealed.
iv) He has attempted to negotiate a settlement of the outstanding costs issues by proposing to transfer the only asset which he says he owns, an RRSP in the amount of $13,531.91, to his wife. That offer was rejected by her.
[7] Counsel argues that none of the above are valid reasons not to pay the arrears, as noted in s. 41(10).
[8] The Applicant acknowledges the decision in Fischer v. Ontario (Director, Family Responsibility Office) 2008 ONCA 825, 2008 CarswellOnt.7447, where the Court of Appeal held that imprisonment upon default in payments of arrears under the Act, was an enforcement mechanism of last resort: The Court stated that:
“24 Recognizing that a statute gives the court the power to make a committal order as a term of a temporary order made in a default proceeding does not, of course, speak to the propriety of imposing that term in any given case. The FRSAEA and predecessor legislation dealing with the enforcement of default orders have always regarded imprisonment for non-payment of those orders as the enforcement mechanism of last resort. Something more than non-payment is required. The payer’s conduct must demonstrate a wilful and deliberate disregard of the obligation to comply with court orders: see e.g. Allen v. Morrison (1987), 11 F.R.L. (3d) 225 (Ont. Div. Ct.), at para. 11, aff’g on this point Allen v. Morrision (1986), 1986 2441 (ON SC), 4 R.F.L. (3d) 113 (Ont. Dist. Ct.); Ricafort v. Ricafort (2006), 2006 ONCJ 520, 35 R.F.L. (6th) 210 (Ont. C.J.), at para. 49; Ontario (Director, Family Responsibility Office) v. Belic (2006), 2006 22811 (ON SC), 30 R.F.L. (6th) 127 (Ont. S.C.J.), at para. 29.
25 Further, the case law and the FRSAEA 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.
[9] Counsel has set forth factors which he submits that the Respondent has demonstrated a wilful and deliberate disregard for the obligation to comply with court orders. He points out that in the initial stages of proceedings between the Respondent and his wife, the Respondent’s pleadings were struck for failing to comply with disclosure orders.
[10] He also notes that the affidavit of Nicole Van Westerop filed in support of her claim for support references that there have been numerous incidents of him hiding income and assets a position which is supported in Justice Mackinnon’s reasons.
[11] Counsel submits that as early as September 2000, in the proceedings between the parties, Justice Mackinnon expressed concerns about what the Respondent was stating his income to be relative to the family lifestyle and assets which had been acquired. He suggests that the history of the proceedings between the parties show a regular and continual disregard for court orders, further exemplified by his wilful conduct not to pay the arrears ordered pursuant to this order.
[12] While acknowledging that incarceration is a last resort, counsel submits that the past actions of Mr. Van Westerop and the public policy considerations of ensuring that orders for payment of arrears are complied with, dictate a period of incarceration of close to the maximum of 180 days.
[13] Mr. Hunter, for the Respondent, submits that Mr. Van Westerop does not have the ability to pay. He notes that there are outstanding costs awards totalling $19,000.00, and that he is unable to deal with the issues in what he calls the “substantive” file between he and his wife because he cannot pay the outstanding costs. As counsel put it “the costs awards have prevented him from getting in the door” to be able to deal with the amount of arrears.
[14] He notes that the material shows that in April 2000, his assets were frozen.
[15] Counsel’s position is that Mr. Van Westerop has satisfied the onus as set out in s. 41(1) that he is unable to pay the arrears, Further, he argues that there is no purpose in using jail as an incentive because of his inability to pay. In the event that I exercise my discretion to impose a period of jail, Mr. Hunter submits that it should be very short because of his role as caregiver for his mother. He suggests a period of 5 days with a delayed commencement date.
The Legal Framework
[16] Case law has clearly established that I am limited to considering the Respondent’s reasons for failure to pay subsequent to the date of hearing on June 5, 2013, Buffan at para. 46:
“What these cases reveal is that evidence from the payor that pre-dates the default hearing, unless it was “reasonably unforeseeable”, is not admissible at a motion for a warrant of committal. Only evidence arising after the default hearing, which establishes a material change of circumstances going to the debtor’s ability to pay, will be considered by the court.”
Discussion
[17] Counsel for the Director has correctly in my view identified the reasons put forth by the Respondent for non-compliance with the order of June 5, 2013.
[18] The situation of his mother being in poor health is not relevant to his ability to pay. The fact, even if I accept it, that he is the sole caregiver, is not sufficient to establish that he is unable to pay the arrears.
[19] He references a change from the June 2013 order that he cannot obtain information to determine if certain credits have been given. However, I do not take that into consideration as the June 2013 order established the amount of arrears, and that order was made on consent. That issue could have been raised at that time. The amount is presumed, and acknowledged by his consent, to be correct.
[20] As to his submission that since the June 2013 order judges have refused to exercise their discretion with respect to lifting the stay of proceedings, that is clearly an issue which could have been dealt with on appeal and no appeals have been pursued.
[21] Similarly, I see no merit in the argument that the Applicant’s refusal to accept a proposal with respect to using his RRSP as payment towards costs shows that he is unable to pay.
[22] I accept the submission of counsel for the Director that, based on the history of the proceedings leading up to this order, Mr. Van Westerop’s credibility as to his income must be considered. It is apparent from the reasons of previous judges that his evidence of his earning history, compared with his lifestyle and acquisition of assets, was something to be looked at with much caution, if not total rejection.
[23] Mr. Van Westerop presents as a payor who will attempt to use any reason, or give any rationale, to avoid having to make support payments in the amount he acknowledged in June 2013, and presumably based on the order, then had the ability to pay.
[24] I find no material change in his circumstances since the June 2013 order.
[25] For all of the above reasons, I order that the Director’s request for a Warrant of Committal is granted. Mr. Westerop shall be incarcerated for a period of 90 days, to be served intermittently each weekend from Friday at 5:00 pm to Monday at 9:00 am or until the outstanding default is cured, or arrangements for payment agreed to by the Applicant are made.
[26] In order to permit him to make arrangements with respect to the care of his mother, I have endorsed the Warrant of Committal to be effective as of September 29, 2014.
[27] It would be my request that in the event Mr. Van Westerop’s mother passes away during the period of incarceration that consideration be given him for a compassionate leave to attend any further services.
[28] Counsel may make submissions as to costs, if necessary, in writing, within 15 days.
___”original signed by”
Mr. Justice T. A. Platana
Released: September 19, 2014
COURT FILE NO.: FC-00-380-E4
DATE: 2014-09-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Director, Family Responsibility Office for the benefit of Nicole Van Westerop,
Applicant
- and -
William G. Van Westerop,
Respondent
DECISION ON MOTION
Platana J.
Released: September 19, 2014
/mls