CITATION: Family Responsibility Office v. Backs, 2016 ONSC 1942
OTTAWA COURT FILE NO.: FC-08-0000035-E002
DATE: 2016/03/18
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY BRANCH
RE: The Director, Family Responsibility Office for the benefit of Joan Edna Backs
Applicant
AND
James A. Backs
Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Malina Feeley, for the applicant
Joseph Hamon, for the respondent
HEARD: February 18, 2016
RULING ON MOTION
Introduction
[1] FRO brings this motion for a warrant of committal based on arrears of child support in the approximate amount of $89,000 as of the date of return of the motion.
[2] Mr. Backs requested an adjournment of FRO’s motion pending the outcome of his Motion to Change (“MTC”). The first court date for the MTC is in early April 2016 – roughly six weeks from the date of return of the motion of warrant of committal.
[3] FRO contested the request for an adjournment on the basis that an adjournment may render the issue of enforcement of the arrears moot (i.e. if the MTC is successful). Ultimately, counsel agreed that the substantive issues would be argued on the assumption that the motion for a warrant of committal would not be adjourned. It is therefore not necessary to deal with the request for an adjournment of the motion for a warrant of committal.
The Issues
[4] The issues to be addressed on this motion are:
a) Is Mr. Backs to be incarcerated by reason of the arrears in support payments?
b) If so, for what period of time is he to be incarcerated?
c) If not, is FRO entitled to any alternative relief with respect to the arrears in support payments?
Decision
[5] For the reasons set out below:
• The motion for warrant of committal is dismissed.
• Mr. Backs shall pay towards arrears of support the sum of $300 per month, over and above the amount which is garnished from his wages.
• The payment of the $300 per month shall be enforceable through FRO.
• There shall be no order as to costs on the motion for warrant of committal.
Background
a) The Separation Agreement
[6] The arrears stem from a separation agreement (“the Agreement”), which Mr. Backs and Joan Backs (“Mrs. Backs”) entered into in December 2007. At the time the Agreement was executed, Mrs. Backs was represented by counsel. Mr. Backs was not represented. He did, however, execute an Affidavit as to Age and Spousal Status in which he:
a) Acknowledged having been given an opportunity to seek independent legal advice;
b) Declined to obtain independent legal advice prior to executing the Agreement; and
c) Acknowledged that he was not coerced or unduly influenced to sign the Agreement.
[7] Also included in the Agreement is a paragraph confirming that the parties had the opportunity to obtain independent legal advice (para. 42).
[8] It was agreed that Mrs. Backs would have sole custody of the couple’s three children: Rob McColeman (August 21, 1987); Laura Backs (August 8. 1990); and Stefanie Backs (June 7, 1993). Based on the income of Mr. Backs in 2006 ($74,995) the Agreement requires him to pay monthly child support in the amount of $1,432.00 (the table amount). The child support payments are to be made in 26 equal amounts, throughout the year and coincide with Mr. Backs’ pay periods.
[9] The Agreement also requires Mr. Backs to pay spousal support in the amount of $1,545.00 per month. The spousal support is to be paid in 26 equal amounts throughout the year.
[10] Other provisions of the Agreement relevant to Mr. Backs’ support obligations include:
a) An acknowledgment that Mrs. Backs was not working outside the home and did not have any income;
b) A provision setting out when child support obligations are to end;
c) The requirement for each of the parties to inform the other in the event of a change in their income;
d) Section 7 expenses and post-secondary education expenses for the children are to be shared by the parties proportionate to their income;
e) Spousal support would be subject to review on April 1, 2010 and, in any event, if there was a change to the amount of child support;
f) Mr. Backs was to arrange for automatic deposit, to Mrs. Backs’ bank account, of the support payments; and
g) Mrs. Backs is permitted to file a copy of the Agreement with FRO for the purpose of enforcement in the event of a default in payment.
b) Procedural History
[11] The chronology of events from the date the parties executed the Agreement to the present is as follows:
Jul. 6/09 FRO requests a writ of seizure and sale with respect to arrears of $13,908.87 accumulated from March to June 2009.
Sept. 18/09 FRO issues a notice of default hearing for a return date of November 23, 2009. The arrears total $15,958.35 and include a $400 administration fee.
Nov. 3/09 FRO advises the Court in writing that the default hearing will not be proceeding on November 23 because they have been unable to serve Mr. Backs. The hearing date is adjourned to January 18, 2010.
Dec. 23/09 An order for substitutional service is obtained, permitting service on Mr. Backs by ordinary mail.
Jan. 5/10 FRO advises the Court in writing that the default hearing scheduled for January 18 is adjourned to March 3, 2010 because they have been unable to effect service of the documents on Mr. Backs.
Feb. 2/10 Service of the relevant documents is carried out by regular mail. In the cover letter addressed to Mr. Backs, he is advised that the support arrears are $21,482.05.
Mar. 8/10 Mr. Backs attends the default hearing. He is unrepresented. He signs a consent on the following terms:
− He shall commence a motion to change before the date to which the default hearing is adjourned (May 12, 2010);
− He shall pay the current ongoing support in the amount of $2,977 per month, in addition to the sum of $300.00 per month on account of arrears, commencing on the 1st day of April, 2010;
− He confirms his address for service as 54 Preston Street; and
− He shall notify the Director of FRO of any change in his income, employment or address.
Justice Maranger makes an order on the terms of the consent. It is worth noting that the consent did not include the term, as provided in the precedent form used, for either incarceration or for FRO to proceed with a motion for warrant of committal in the event of default.
May 12/10 Mr. Backs does not attend the default hearing. He was aware of the hearing, as the date of hearing was included in the consent he signed in March. In the absence of Mr. Backs, an order is made by Justice Sheffield which provides:
Arrears of support are set in the amount of $26,074.70 as of May 3, 2010, inclusive of the FRO administrative fees totaling $400.00;
The Respondent shall pay the said arrears in full within 90 days;
Failing payment of the above arrears, Mr. Backs shall be incarcerated for a period of up to 180 days as may be determined by a Court on a motion for a warrant of committal;
The Respondent shall advise the FRO in writing immediately upon any change in his residential address and provide details of the change; and
This order may be served by mail to 54 Preston Street, Ottawa, ON K1R 7N7.
This marks the first point in time at which FRO is, based on a court order, in a position to bring a motion for a warrant of committal.
Feb. 9/11 FRO issues a notice of motion, with a return date of April 18, 2011, for a warrant of committal. As of this date the arrears total $34,443.18.
Mar. 30/11 An order for substitutional service is made, permitting service by mail.
Apr. 12/11 FRO advises the Court in writing that the motion for a warrant of committal is adjourned to June 27, 2011 because of an inability to serve Mr. Backs.
Jun. 27/11 As of this date the arrears total $37,619.57. A bench warrant is issued, with Justice Aitken endorsing that Mr. Backs is to “be brought before the Court to explain default”.
[12] The bench warrant issued by Justice Aitken in June 2011 was executed on January 15, 2016 – 4.5 years after it was signed. Mr. Backs appeared in Court on that date. He signed a bond in which he promised to appear on February 2, 2016. Mr. Backs appeared in Court with counsel on February 2 and the matter was adjourned to February 11, 2016.
[13] On February 11, FRO was seeking a warrant of committal. An affidavit and financial statement, both sworn by Mr. Backs had been ‘filed’ only 30 minutes prior to the start of the hearing. Not all of the relevant documents were before the Court. The parties agreed to adjourn the matter for one week, so that all relevant documents would be before the Court.
[14] From the statements of arrears filed by FRO over time, it is clear that Mr. Backs fell into default in the payment of support as of March 1, 2009. He has been making payments since June 2009. The payments appear to be coincident with a bi-weekly pay period. The amount paid per pay period has been as follows:
Jun. 06/09 to Feb. 14/11 - $ 976.16
Feb. 25/11 to Feb. 09/12 - $ 1,008.68
Feb. 22/12 to Feb. 10/14 - $ 1,017.92
Feb. 18/14 to Jan. 20/16 - $ 1,002.87
[15] The most recent statement of arrears filed with the Court shows arrears of $87,079. The support payments made from June 29, 2009 to January 20, 2016 total approximately $170,000.
c) Evidence of Mr. Backs
[16] In response to the motion for a warrant of committal, Mr. Backs filed an affidavit with the Court (“the Backs Affidavit”). The affidavit was sworn by Mr. Backs on February 10, 2016. In it he “explain[s] his default” (as per the endorsement of Justice Aitken in June 2011).
[17] The evidence in the Backs Affidavit emphasizes Mr. Backs’ reliability. Mr. Backs’ states that he is not a flight risk; he has been employed with the Federal Government since 1991; FRO has been garnishing 50 per cent of his wages since 2008 (which he later corrects to 2009); and he agrees to have FRO continue to garnish 50 per cent of his wages. Mr. Backs states that he would like to negotiate with Mrs. Backs the issue of support arrears pending further order of the Court or a settlement.
[18] Mr. Backs explains his current and historical difficulties dealing with FRO, the latter because he was overwhelmed by his financial circumstances. Mr. Backs acknowledges that he “put [his] head into the sand.”
[19] Mr. Backs highlights that the total support (child and spousal) payable pursuant to the Agreement was approximately 70 per cent of his income at the time the Agreement was executed. It was intended that by paying total support at that level Mr. Backs would fulfil his obligation pursuant to paragraph 13b of the Agreement for Mrs. Backs to be in receipt of 65 per cent of the cumulative net family income.
[20] Mr. Backs’ evidence is that when he signed the Agreement in December 2007, he was confident that he would be able to make the support payments to which he had agreed. In 2008, Mr. Backs realised that he would not be able to fulfil his support payment obligations. As of 2009 he fell into arrears.
[21] Mr. Backs’ understanding of FRO’s involvement as of 2009 is as follows:
a) Mrs. Backs requested FRO to garnish his wages;
b) As a result of the garnishment, the percentage of his net income that he would be required to pay would be reduced from 70 to 50 per cent; and
c) With that reduction he would then be in a position to fulfil his support obligations and have sufficient funds to meet the expenses for his basic necessities.
[22] Mr. Backs has not offered any explanation as to why in March 2010 he consented to an order which required him to pay not only the ongoing amount of support but also an additional amount of $300 per month.
[23] As to his living arrangements, Mr. Backs’ evidence is that after entering into the Agreement he found inexpensive rental accommodation – a basement apartment on Preston Street at a cost of $760 per month.
[24] Mr. Backs filed a financial statement sworn on February 10, 2016. His personal expenses are at a modest level: $480 per year for clothing; $6,000 per year for groceries; $360 per year for public transit and taxis; and $600 per year for dental care.
[25] Mr. Backs identifies discretionary spending on meals outside the home ($2,400 per year); entertainment ($1,200 per year); gifts ($2,400 per year); and golf ($1,500 per year). The only discretionary spending that Mr. Backs explains is the golf. At paragraph 21 of his affidavit, Mr. Backs states:
I am anticipating that my golf may become an issue. I have been fortunate, since 2009, to have joined Executive Golf as a volunteer. While there is no monetary compensation for my services, I have been able to play golf very cheaply. I estimate that I spend approximately $125.00 a month to participate in my only form of recreation. Other than that, see the occasional movies or the play. I don’t drink, drive and don’t own a vehicle.
[26] Mr. Backs’ assets, as set out in his financial statement, are nominal – with bank accounts being his only assets and the balances totalling $990 as of the date of the financial statement.
d) Motion to Change
[27] On the return of the FRO motion, counsel for Mr. Backs advised that the documents for the MTC were prepared and would be filed with the Court that day. It was anticipated that the MTC would be heard in April 2016.
i) Changes in Child Support Obligations
[28] Mr. Backs’ position on the MTC will no doubt be that the amount of child support he was obligated to pay decreased over time based on the terms of the Agreement and changes in the lives of each of the children. Paragraph 8f of the Agreement provides as follows:
The Husband shall pay to the Wife support for the children of the relationship until the happening of one of the following events:
i. The child ceases to reside with the mother, meaning to live in the home of the mother or maintain a home base at the mother’s home. The child does not cease to reside in the mother’s home if the child is temporarily away from the home to attend an educational institution, for the purpose of summer employment or to enjoy a reasonable holiday; however, such an event shall be deemed a material change in circumstances at which time child support may be reviewed by either party;
ii. The child becomes eighteen years of age and ceases to be in full-time attendance at a high school, university or community college;
iii. The child becomes twenty-three years of age or completes his or her first post-secondary degree or diploma;
iv. The child marries; and/or
v. The child dies.
[29] Mr. Backs does not have actual knowledge as to when any one or more of the criteria listed above was met. In his affidavit, Mr. Backs provides his belief as to how the circumstances of his children have changed since the Agreement was signed:
• Robert, who was 20 when the Agreement was signed, is now 28 years old. He is said to have been out of school and been working full-time for a number of years. Mr. Backs estimates that his obligation to pay child support for Robert ended in April 2011.
• Laura was 17 years old when the Agreement was signed. She is now 25 years old and has graduated from Trent University. It is Mr. Backs’ belief that Laura has one child and is not married. Mr. Backs estimates that his obligation to pay child support for Laura ended in May 2013.
• The Backs’ youngest child, Stefanie was 14 when the Agreement was signed. She graduated from Francis Memorial University. It is Mr. Backs’ belief that Stefanie is employed on a full-time basis. Mr. Backs estimates that his obligation to pay child support for Stefanie ended in May 2015.
[30] Mr. Backs’ evidence is that he has not, for some time, had any relationship with his children. He identifies May 2005 – the date of separation – as the beginning of his estrangement from his children.
ii) Changes in Spousal Support Obligations
[31] With respect to his obligation to pay spousal support – both historical and ongoing – Mr. Backs’ position for the MTC appears to be the following:
• When the Agreement was executed, Mrs. Backs was imputed income of $12,000 per year (below the current minimum wage figure by approximately 50 per cent).
• Mr. Backs has no information as to any income Mrs. Backs has earned since the Agreement was executed.
• Mr. Backs has not filed income tax returns since 2009.
• Neither Mr. Backs nor Mrs. Backs have exchanged documents on an annual basis as is required by the Agreement for the purposes of review of the amount of support (child and/or spousal) payable.
• The couple were married for 15 years. Mr. Backs has been paying spousal support for 11 years. His belief is that payment of spousal support for 8 years would be reasonable in the circumstances.
[32] The terms of the Agreement relevant to spousal support provide for a review of, and potentially a change in, the amount of spousal support over time based on a number of factors, including a change in the amount of child support payable. In addition, in the Agreement, Mrs. Backs acknowledged her obligation to become self-sufficient within a reasonable time. With respect to the calculation of ongoing spousal support, the Agreement calls for $12,000 income to be imputed to Mrs. Backs as of April 1, 2010 when the amount of spousal support payable was first to be reviewed.
iii) Potential Overpayment
[33] In his affidavit, Mr. Backs says that, “if when all the calculations have been made, it becomes clear that I have overpaid, I have no intent to request any overpayment from Joan.”
Analysis
Issue No. 1 – Warrant of Committal
a) The Positions of the Parties
i) Family Responsibility Office
[34] In support of the motion for a warrant of committal, FRO relies on the May 2010 order of Justice Sheffield. That order provides that upon failure to pay arrears of $26,074.70 within 90 days of the date of the order, Mr. Backs “shall be incarcerated for a period of up to 180 days or such lesser period as may be determined by a Court or a Motion for a Warrant of Committal”.
[35] With such an order having been made, FRO’s position is that the power to change Justice Sheffield’s order is prescribed by section 41(15) of Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31 [FRSAE Act]. Pursuant to that section, “The court that made an order under subsection (10) or (12) may change the order on motion if there is a material change in the payor’s or other person’s circumstances, as the case may be.”
[36] FRO’s position is that the evidence relied on by Mr. Backs does not support a finding that there has been a “material change in the payor’s or other person’s circumstances”. More specifically, the “material change” must have occurred subsequent to the date of the default order and must be with respect to the payor’s ability to pay.
[37] As a result, a warrant of committal is to be issued and Mr. Backs is to be incarcerated, even if on an intermittent basis, pending payment in full of the arrears.
[38] In the alternative, FRO’s position is that if a warrant of committal is not issued then an order is to be issued pursuant to which Mr. Backs is required, pending the outcome of the MTC, to pay an amount ($300 is suggested) on a monthly basis in addition to the amount currently being garnished from his wages and that the ‘additional’ monthly amount be applied towards the arrears owing.
ii) Mr. Backs
[39] It is Mr. Backs’ position that incarcerating him will not serve the purpose of enforcing arrears. He has demonstrated that he does not have the financial ability to pay arrears in a lump sum. The amount of the arrears is, in any event, in dispute given that he is proceeding with the MTC. Incarceration is the method of last resort and is unwarranted in the circumstances.
The Law
a) “Material Change” in Circumstances
[40] As noted above, section 41(15) of the FRSAE Act provides, “The court that made an order under subsection (10) or (12) may change the order on motion if there is a material change in the payor’s or other person’s circumstances, as the case may be.” As I read section 41(15), the “other person” is someone who is added as a party to the proceeding pursuant to s. 41(5) of the Act. There is no “other person” in this matter. Therefore the only potential “material change” in circumstances is that of the payor, Mr. Backs.
[41] FRO’s position is that the “material change” must be subsequent to the date of the subject order. In support of that position, FRO relies on Bradshaw v. Davison, 2010 ONCJ 23, and Ontario (Director, Family Responsibility Office) v. Von Westerop, 2014 ONSC 5443, 50 R.F.L. (7th) 490 [Von Westerop].
[42] In Von Westerop, Platana J. addresses a “material change” in the support payor’s circumstances. At paragraph 16 of his decision and quoting from a 2012 decision of the Ontario Court of Justice, Platana J. says:
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.
[43] I agree with counsel for FRO that section 41(15) of the FRSAE Act requires a “material change” in the support payor’s circumstances subsequent to the date of the order on the default hearing. I also agree with counsel for FRO that Mr. Backs has not demonstrated a “material change” in his circumstances as since May 2010 when Justice Sheffield made his order or, for that matter, since March 2010 when Mr. Backs consented to an order on the default hearing.
[44] FRO’s position on section 41(15) of FRSAE Act is not disputed by Mr. Backs. Mr. Backs does not dispute that position because he is not pursuing a motion to change the order made by Justice Sheffield. Mr. Backs’ position is that in all of the circumstances the motion for a warrant of committal, sought by FRO on the basis of Justice Sheffield’s order, should be dismissed.
b) Warrant of Committal
[45] The decision Von Westerop is relied on by FRO as it relates generally to the request for a warrant of committal to issue with respect to Mr. Backs.
[46] FRO submits that Mr. Backs’ position is analogous to that of Mr. Von Westerop because both individuals consented at a default hearing to an order with respect to arrears. Mr. Backs consented in March 2010 to the order upon which Justice Sheffield’s May 2010 order is based. I agree with counsel for FRO that Mr. Backs and Mr. Von Westerop are in that regard alike; however, the similarity between them is very limited.
[47] In Von Westerop, FRO made the argument that the defaulting payor had “demonstrated a wilful and deliberate disregard for the obligation to comply with court orders.” In the matter before me, counsel for FRO submits that Mr. Backs admits to such wilful and deliberate disregard. Counsel for FRO refers to the Backs affidavit, in which Mr. Backs says:
I understand that FRO will not negotiate with me as I have ignored letters from FRO and I understand that there is also court orders against me due to my ignoring and quite frankly, deliberate attempts to avoid FRO. I have had a difficult time of it. I tried to make payments directly to Joan but our accounting did not match up. It was put into FRO by Joan. FRO did contact me and I found it very difficult to listen to them when my finances were tight but they kept asking for more and I simply couldn’t do it. I know I should not to put my head in to the sand but I really couldn’t cope with the pressure that was being put on me.
[48] Despite Mr. Backs having made that admission, I do not equate his conduct to the conduct of Mr. Von Westerop. There are significant and meaningful differences between the Von Westerop and Backs cases:
• Mr. Von Westerop had a long history of hiding assets and income. The lack of disclosure on Mr. Von Westerop’s part led to an order striking his pleading in the initial stages of the proceeding. There is no evidence before me to support a finding that Mr. Backs has a history (lengthy or otherwise) of hiding assets and income.
• When Mr. Von Westerop consented to the order at the default hearing he was: a) represented by counsel, and b) in arrears in the amount of $855,000. Mr. Backs has not been represented until recently. He was not represented when in March 2010 he consented to the terms of the order made at that time.
• The motion for warrant for committal of Mr. Von Westerop was adjourned five times before it came before Platana J. The motion for warrant of committal of Mr. Backs was adjourned three times (twice in 2011 and once in 2016). The adjournment in 2016 was granted so that all of the relevant documents would be before the Court on the return of the motion for warrant of committal.
[49] Mr. Backs is not the equivalent of Mr. Von Westerop, whom Platana J. concluded “presente[d] 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.” Mr. Backs has paid $170,000 since mid-2009. His wages continue to be garnished on a bi-weekly basis.
[50] Mr. Backs relies on the decision of the Ontario Court of Appeal in Fischer v. Ontario (Director, Family Responsibility Office), 2008 ONCA 825, 92 O.R. (3d) 721 [Fischer]. He relies on Fischer in particular because of the discussion by the Court of Appeal with respect to incarceration generally as a mechanism of enforcement.
[51] By the time Fischer reached the Court of Appeal, the issues between the parties were no longer contentious. However, the parties agreed that the family law bench and bar would benefit from a pronouncement from the Court of Appeal as to the existence of the power to make an order directing imprisonment upon default in payment under the terms of a temporary order pursuant to the FRSAE Act. The Court of Appeal was specifically asked to “identify the steps judges should take to ensure that the proposed subject of the committal order is treated fairly when the order is made”.
[52] In Fischer, the temporary order provided that Mr. Fischer was to be incarcerated for a period of seven days on each and every default. The order of Justice Sheffield, upon which FRO relies in support of the motion for warrant of committal with respect to Mr. Backs, is not the same type of order.
[53] The following passage from Fischer is frequently quoted to emphasize that incarceration is a mechanism of last resort:
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 payor’s conduct must demonstrate a wilful and deliberate disregard for the obligation to comply with court orders. [Footnote omitted.]
[54] In the Backs matter, FRO relies on the final sentence from the quote immediately above and argues that Mr. Backs has demonstrated “wilful and deliberate disregard for the obligation to comply with court orders.” That argument, however, completely overlooks the preceding sentence from the quote: “Something more than non-payment is required.”
[55] Fischer sets out a two-part test to be met for a warrant of committal to be issued. First, there must be non-payment. That criterion is not met in the matter before me. Mr. Backs has been making payments on a continuous and regular basis since June 2009 through garnishment of his wages. Mr. Backs has paid $170,000 in support over the past eight years. If the payments in 2008 and the first two months of 2009 are included, he has paid more than $200,000 in support.
[56] As a result, the two-part test in Fischer is not satisfied and circumstances do not support a warrant of committal being issued with respect to Mr. Backs. However, in the event I am incorrect in that regard I shall address the second element of the test.
[57] The second criterion is that there must be “deliberate disregard for the obligation to comply with court orders.” Mr. Backs admits to his deliberate disregard for FRO and the process of enforcement of arrears. I find that Mr. Backs’ disregard is broader in scope than he has admitted and includes his obligation to comply with court orders – in particular the order of March 2010, to which he consented, and the May 2010 order of Justice Sheffield. The extent of Mr. Backs’ disregard for the enforcement process is demonstrated by the fact that it took a bench warrant to bring him back before the Court.
[58] In Allen v. Morrison (1987), 1987 CanLII 4352 (ON SC), 62 O.R. (2d) 790 (Div. Ct.), at paras 10, 11 and 12, Saunders J. said:
Persons are no longer imprisoned for their debts. The legislature considers that support and maintenance are in a special category.
[The power to order imprisonment] is not imposed as punishment but rather as a last resort to coerce or persuade the defaulting spouse to meet the human obligations imposed by society through the legislature.
It is clear and beyond dispute that a statute which provides for breach of a civil obligation must be strictly construed.
[59] I find that imprisonment is not required to coerce or persuade Mr. Backs to meet his support obligations. He is but one of two parties to an Agreement to which there has to date been less than strict adherence. There is no doubt that Mr. Backs has sat on matters and is less than perfect in adhering to the terms of the Agreement. It appears that Mrs. Backs is also less than perfect in her adherence to the terms of the Agreement. There is no evidence of any communication on her part with Mr. Banks to address either her income over time or changes in the children’s circumstances.
[60] It is not surprising that in the face of the arrears in support Mrs. Backs chose not to abide by the disclosure and review provisions in the Agreement. However, the failure of Mrs. Backs to adhere to the terms of the Agreement in no way excuses the conduct to date of Mr. Backs.
[61] In all of the circumstances it is reasonable to permit Mr. Backs to proceed in a timely manner with the MTC. Mr. Backs, Mrs. Backs (as a party to the MTC), and FRO need to address the historical and ongoing support obligations. Unless and until the MTC is determined, the status of arrears remains uncertain.
[62] In summary, the motion for a warrant of committal is dismissed.
Issue No. 2 - Alternative Relief
[63] FRO requests that pending the outcome of the MTC, Mr. Backs be ordered to pay an amount in addition to the money paid through garnishment of his wages. Counsel for FRO submits that this additional amount be $300 per month.
[64] In support of this aspect of the relief requested FRO relies on the contents of Mr. Backs’ financial statement sworn on February 10, 2016. As noted in paragraph 25 above, Mr. Backs identified discretionary spending on meals outside the home, entertainment, gifts, and golf totalling $7,500 per year.
[65] There is no explanation in the Backs’ affidavit as to the expenditure of $2,400 per year on gifts. Mr. Backs states that he spends $2,400 per year on meals outside his home. That statement is at odds with Mr. Backs ‘plea’ of poverty: that he has friends and family who support him when he finds himself in “such dire straits that [he is] in need of a meal or a loan to get [him] through to the next pay cheque.”
[66] Mr. Backs estimated when his child support obligations for each of his children would have ended over time. He provided his annual income for the years 2011 to and including 2015. Assuming Mr. Backs’ income figures are accepted and Mr. Backs is required to pay the table amount of child support, by my preliminary calculation, his child support obligations from May 2011 through May 2015 would be approximately $22,000 less than the total for the same period of child support obligation based on $1,432 per month pursuant to the Agreement. That $22,000 figure does not, however, take into consideration:
a) The potential increase in spousal support as child support is reduced;
b) The potential increase in child support (over and above the amount set out in the Agreement) in 2009, 2010, and the first four months of 2011 when Mr. Backs’ actual income for those years is considered; and
c) Any other factors which may be considered on the return of the MTC.
[67] With respect to spousal support, Mr. Backs’ position is that he has overpaid spousal support by approximately three years – having paid for 11 years instead of 8 years (see paragraph 31). The spousal support payable pursuant to the terms of the Agreement is $1,542 per month. Even if it is assumed that: a) there is, as child support payments are reduced or on the basis of changes in either of the party’s annual income, no increase in spousal support payable; and b) Mr. Backs succeeds in limiting the payment period to 8 years, the estimated overpayment of spousal support is $55,500 (36 mos. x $1,542 / mo.).
[68] On the basis of my preliminary estimate, the most favourable outcome for Mr. Backs on the MTC is potentially a reduction of the arrears by approximately $77,000 ($22,000 for child support and $55,500 for spousal support).
[69] It cannot be determined with any certainty at this time whether, even if Mr. Backs obtains the most favourable outcome possible on the MTC, the arrears which currently total approximately $90,000 will be fully eliminated. The extent to which Mr. Backs is in default of orders previously made by this Court does not, in the circumstances and in my view, support a warrant of committal being issued at this time. However, an order for payment towards arrears of an amount over and above the amount garnished from Mr. Backs’ wages is reasonable in the circumstances.
[70] Mr. Backs previously agreed to pay an ‘additional’ $300 per month even after he appreciated that he would not be able to pay the full amount of the support he was obligated to pay pursuant to the Agreement. To date he has not made any of the additional payments which he agreed to make. At present he admits to discretionary spending on gifts ($2,400 per year) and on meals outside the home ($2,400 per year) without full explanation of either type of expenditure. I agree with FRO’s position and find that Mr. Backs has the financial ability to pay $300 per month over and above the garnishment of his wages.
Summary
[71] I order as follows:
The motion for warrant of committal is dismissed.
Mr. Backs shall, pending final determination of the motion to change, pay $300 per month in addition to the amount by which his wages are garnished.
The payment ordered pursuant to paragraph 2 shall be enforceable through FRO.
[72] Given the mixed success on the motion for warrant of committal there shall be no order as to costs.
Madam Justice Sylvia Corthorn
Date: March 18, 2016
CITATION: Family Responsibility Office v. Backs, 2016 ONSC 1942
OTTAWA COURT FILE NO.: FC-08-0000035-E002
DATE: 2016/03/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: The Director, Family Responsibility Office for the benefit of Joan Edna Backs
Applicant
AND
James A. Backs
Respondent
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Malina Feeley, for the applicant
Joseph Hamon, for the respondent
RULING ON MOTION
Madam Justice Sylvia Corthorn
Released: March 18, 2016