CITATION: Ontario (Director, Family Responsibility Office) v. Vilfort, 2016 ONSC 7565
COURT FILE NO.: FC-02-583-E0
DATE: 2016/12/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Director, Family Responsibility Office for the benefit of Tanya Mathieu, Applicant
AND
James Vilfort, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Allan T. Hirsch, for the Applicant
No one appearing for the Respondent
HEARD: November 29, 2016
ENDORSEMENT
[1] The Applicant, the Family Responsibility Office (“FRO”), brings this motion asking for a Warrant of Committal pursuant to Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (“FRSAEA”), as the Respondent has failed to comply with the terms of the Order dated April 8, 2014 by failing to pay child support in the amount of $694.76 per month and $100 per month.
[2] At the hearing of August 24, 2015, Justice Johnston granted the Respondent an adjournment and ordered that the failure to pay $794 per month commencing September 1, 2015 to and including December 1, 2015 would result in a Warrant of Committal of 14 days.
[3] To date, the Respondent has made a payment of $2,481.15; hence, the amount outstanding from this motion is $7,055.97. The matter has been adjourned seven times.
[4] The Respondent’s affidavit indicates that he is unemployed and that imprisonment would be punitive since he does not have the ability to pay the arrears. It would also be unproductive, as it takes time away from employment searches and would have a negative impact on his employment prospects upon release. He was terminated from his recent employment following the FRO’s contact with his employer to deal with enforcement. Most importantly, the 16 year old child (Jaden), who is the subject of the child support order, resides with him.
[5] The issue is whether this Court should, in all the circumstances, exercise its discretion in favour of issuing the Warrant of Committal.
[6] For reasons set out below, this Court orders that the issuance of the Warrant of Committal against the Respondent for a term of imprisonment of 14 days be suspended. Before the next court appearance before me, the Respondent is ordered to file the forms necessary to allow him to obtain an order for leave to proceed with his motion to change, request retroactive and ongoing child support from the mother and obtain an order for stay of enforcement. This matter is to return before me before February 17, 2017.
Background
[7] Pursuant to Justice Manton’s Order dated December 11, 2006, the Respondent was required to pay child support in the amount of $694.36 per month. This order has never been varied.
[8] On May 9, 2007, Justice Byers, on a default hearing, ordered that the Respondent pay the accumulated arrears of $6,101 and all subsequent accruals by September 1, 2007 or serve up to 30 days in jail in default of payment.
[9] On May 13, 2008, Justice Manton required the Respondent to serve 30 days in jail unless he paid the amount of $13,955.
[10] The Respondent was ordered to be imprisoned for 30 days in October 2009 and was not successful at his motion to be released earlier, as he undertook to commence a Motion to Change. He served 30 days in prison.
[11] By the temporary order of Justice Kane dated February 8, 2010, he was required to pay $100 per month towards arrears and commence a Motion to Change by March 8, 2010.
[12] He commenced a Motion to Change. However, since he failed to proceed with his motion or pay the $100 per month, a warrant for his arrest was issued on August 2, 2011 and then subsequently vacated on August 25, 2011. Justice McMunagle stayed the Motion to Change on December 12, 2012 until he paid all costs ordered or until he obtained a further order setting security for costs.
[13] The Motion to Change has not resumed, as he has yet to seek leave to continue with the Motion to Change, pay the outstanding costs order, or obtain a further order for security for costs.
[14] On February 27, 2013, Justice Minnema made a consent final default hearing order requiring the Respondent to pay $1,000 per month (i.e. ongoing monthly support of $694.76, plus $305.24 per month for arrears), failing which the Respondent would be imprisoned for up to 180 days.
[15] The FRO brought a motion for a Warrant of Committal to enforce Justice Minnema’s order. On March 4, 2014, the Respondent filed a motion pursuant to s. 41(15) of the FRASAEA to change the final default hearing order.
[16] Justice Blishen made two orders on April 8, 2014. She varied Justice Minnema’s order and reduced the support obligation to $794.36 (i.e. ongoing support of $694.36, plus $100 per month for arrears). The payment remained subject to Justice Minnema’s order, which provided for a Warrant of Committal for failure to make support payments. She also ordered that he pay $1,824.90 within 60 days.
[17] The motion for a Warrant of Committal was adjourned and, when the Respondent paid the $1,824.90, it did not proceed.
[18] The Respondent failed to make any further payment. The FRO brought a third motion for a Warrant of Committal, dated March 13, 2015, to enforce the amount of $9,537.12.
[19] On August 24, 2015, on consent, Justice Johnston adjourned the matter to December 8, 2015, on the condition that the Respondent pay $794 per month, failing which a warrant “shall issue for 14 days of imprisonment”.
[20] On December 8, 2015, the matter was adjourned by this Court as the Respondent was the victim of a fire in his kitchen. He had not filed the document in response to the motion nor did he file leave to proceed with the Motion to Change the support order. The Respondent provided a cheque in the amount of $250 to the FRO and advised the Court that he had mailed the FRO a certified cheque in the amount of $2,000.
[21] The Court adjourned the matter to January 25, 2016 with the following provisions:
− He would pay $3,176 to the FRO;
− Proof of payment would be filed with the Court; and
− He would complete, file, and serve upon the FRO and the recipient, his Motion to Change Justice Blishen’s Order, with all supporting documentation, before the next court date.
[22] On January 25, 2016, the Respondent provided the following information regarding events that had occurred since December 8, 2015:
− He was terminated from his employment;
− He did not receive the three pay cheques he was expected to use to retain a lawyer;
− The $2,000 cheque was returned as there was no case number on the cheque;
− He did not receive money from the insurance company regarding the fire; and
− He has a limited retainer with Mr. Gilpin to assist him with the court documentation.
[23] The FRO consented to the adjournment. The Court ordered that the Respondent provide, by hand, a cheque for $2,000, postdated for January 26, 2016. The Respondent was to issue a Notice of Motion to Change before the next court hearing. If the Respondent wished to dispute the Warrant of Committal, he was to serve and file a Notice of Motion and supporting documentation pursuant to s. 41(15) under the FRSAEA, to be served on the FRO before the next court date of March 17, 2016. He was also required to pay $926 before the next court date.
[24] He was paying for expenses directly to the recipient for their child Jadon and he was unemployed. The Court ordered no costs and adjourned the matter to March 24, 2016.
[25] On March 24, 2016, he confirmed that he was being assisted by Mr. Gilpin but had not paid the $926. On consent, the matter was adjourned to June 10, 2016.
[26] On June 10, 2016, the Respondent reported that the child, who is the subject of this order, has been residing with the Respondent. On consent, the matter was adjourned and the Court ordered the Respondent to file a motion for leave to bring a Motion to Change and a Stay of Enforcement by July 15, 2016. He was to serve the recipient and the FRO.
[27] The matter came before the Court on November 29, 2016. The Respondent had not brought his motion for leave to proceed with his Motion to Change as he had no funds to pay the lawyer: he was using funds to finance his son’s travels regarding joining a professional soccer team. He states that his son is doing very well academically and is being wooed by many professional soccer teams due to his extraordinary talent. He has to pay for his son’s expenses associated with these recruitments.
[28] The Respondent filed a motion returnable March 24, 2016, requesting that the motion for a Warrant of Committal be dismissed, setting aside the $100 per month order, and seeking an order staying the enforcement proceedings. His affidavit of March 17, 2016 states that he is unemployed and did not earn income over the period of time referenced in the Directors’ Statement of Arrears. His previous lawyer removed herself from the record on the day of the motion when he initially brought the Motion to Change. He was unable to pay the court costs, nor pay a lawyer to assist him with the Motion to Change.
[29] Given his income over the years, he calculates that he overpaid by at least $27,000. In 2015, his income was $8,000 and could not afford the $694.76 per month.
[30] At the motion on November 29, 2016, the Respondent advised that he had received money from the recipient’s parents to assist with paying Mr. Gilpin, the lawyer, and a draft motion and affidavit were filed. The documents did not include a financial statement nor indicate the proper parties nor did it include a motion for leave to proceed with his Motion to change.
[31] The FRO’s motion seeks a Warrant of Committal. The matter has been adjourned seven times. An updated Director’s Statement of Arrears, filed as Exhibit 1, showed a balance owing of $82,421.90. The FRO requests 14 days of imprisonment as per Justice Johnston’s order dated August 24, 2015.
Legal Framework
[32] Rule 30 of the Family Law Rules, O. Reg. 114/99 (the “FLRs”), provides as follows:
- (1) The clerk shall issue a notice of default hearing (Form 30),
(a) if the support order is being enforced by the recipient, when the recipient files a request for a default hearing (Form 30A) and a statement of money owed (subrule 26 (5));
(b) if it is being enforced by the Director, when the Director files a statement of money owed.
(2) The notice of default hearing shall be served on the payor by special service in accordance with subrule 6 (4) and filed.
(3) Within 10 days after being served with the notice, the payor shall serve on the recipient and file,
(a) a financial statement (Form 13); and
(b) a default dispute (Form 30B).
(4) The recipient shall serve and file a new statement of money owed (subrule 26 (5)) not more than seven days before the default hearing.
(5) Despite subrule 26 (10), subrule (4) applies to the Director only if,
(a) the amount the Director is asking the court to enforce is greater than the amount shown in the notice of default hearing; or
(b) the court directs it.
(6) The payor is presumed to admit that the recipient’s statement of money owed is correct, unless the payor has filed a default dispute stating that the statement of money owed is not correct and giving detailed reasons.
(7) At the default hearing, the court may decide and enforce the amount owing as of the date of the hearing.
(8) The court may make an order under clause 41 (10) (h) or (i) of the Family Responsibility and Support Arrears Enforcement Act, 1996, suspending the payor’s imprisonment on appropriate conditions.
(9) If the recipient, on a motion with special service in accordance with subrule 6 (4) on the payor, states by affidavit (or by oral evidence, with the court’s permission) that the payor has not obeyed a condition that was imposed under subrule (8), the court may issue a Warrant of Committal against the payor, subject to subsection 41 (15) (power to change order) of the Family Responsibility and Support Arrears Enforcement Act, 1996.
[33] Section 41 of the FRSAEA states:
(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.
(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.
(12) If the court is satisfied that a person who was made a party to the hearing under subsection (5) sheltered assets or income of the payor such that enforcement of the support order against the payor has been frustrated, the court may, having regard to all the circumstances, including the purpose and effect of the dealings and the benefit or expected benefit therefrom to the payor, make any order against the person that it may make against the payor under clauses (10) (a), (b), (c), (e), (f) and (g) and subsection (19), to the extent of the value of the sheltered assets or income and, for the purpose, in clause (10) (c), “payor’s” shall be read as “person’s”.
(13) Subsections (7) and (8) apply with necessary modifications to a person with respect to whom an order is made under subsection (4) or (5).
(14) The court may make a temporary order against the payor, or a person who was made a party to the hearing under subsection (5), that includes any order that may be made under subsection (10) or (12), as the case may be.
(15) 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.
(16) The Director may enforce an order against a person made under subsection (12), (14) or (15) in the same manner as he or she may enforce an order against the payor.
(17) Imprisonment of a payor under clause (10) (h) or (i) does not discharge arrears under an order.
[34] As stated by Justice Gray in Ontario (Director, Family Responsibility Office) v. Kilpatrick (2008), 2008 49331 (ON SC), 60 R.F.L. (6th) 435 (Ont. S.C.), at paras. 41–43, 45:
In my view, s. 41 of the Act must be interpreted as part of an overarching policy reflected in the statute as a whole: that non-payment of support orders is a societal problem, and significant enforcement mechanisms must be provided in order to solve it. The statute is remedial, and the enforcement mechanisms must be considered to implement the remedial thrust of the Act so as to accomplish the legislature’s purpose. The statute must have teeth, and must be understood to have teeth. Otherwise, the intention of the legislature will be frustrated.
The Director is given considerable discretion in deciding, in any particular case, which of the many enforcement mechanisms he or she will use. It is not for the Court, in my view, to second-guess the Director’s judgment in this respect. Accordingly, I do not think it is necessary or advisable for the Court to inquire into what other mechanisms the Director may or may not have utilized before settling on imprisonment as the appropriate one. Indeed, I note that the words that were formerly in s. 29 of the Family Law Reform Act, quoted above, namely, “where the court is satisfied that all other practicable means that are available under this Act for enforcing payment have been considered”, are not in s. 41 of the current Act. For this reason, I think the decision of the Divisional Court in Morrison v. Allen (1987), 62 O.R. (2d) (Div.Ct.) in which Saunders J., at para. 11, stated that imprisonment is imposed “as a last resort” to coerce or persuade the defaulting spouse to meet the human obligations imposed by society through the legislature, is no longer relevant.
Ability to pay continues to be relevant, however, and indeed, in my view, it remains one of the fundamental preconditions on which the use of imprisonment must be based: that the defaulting payor is unwilling, rather than unable, to pay….
In summary, the enforcement mechanism of imprisonment has been retained as part of an enhanced panoply of enforcement mechanisms that have evolved over time. The legislature has obviously considered the spectre of defaulting payors to be a societal issue of some importance, and has considerably strengthened the avenues of enforcement that are available. It is no longer necessary to show that other enforcement mechanisms have been unsuccessful before imprisonment can be imposed.
[35] As stated by Justice Spence in Ontario (Director, Family Responsibility Office) v. Buffan, 2012 ONCJ 768, refers to Justice James Ontario (Director, Support and Custody Enforcement) v. Levenson: 1990 3985 (ON CJ), [1990] O.J. No. 2410 (Ontario Court of Justice):
The debtor’s reasons for failure to pay must be limited to matters or events arising after the date of the default order or the date of the hearing of any subsequent motion for committal, whichever date is the most recent. The court may be persuaded to admit reasonably unforeseeable consequences of events or matters predating the default order or the subsequent motion for committal. What ought not to be allowed is an attempt to submit reasons for non-payment that were already submitted or that, with due diligence, could have been submitted before the judge who made the order of committal or who heard any subsequent motion for committal. The motion for committal is never a default hearing de novo.
This position was essentially approved of, subsequent to the enactment of the Rules, by Justice A.T. McKay in Bradshaw v. Davidson [2010] O.J. No. 435 (O.C.J.). At paragraph 10 of his decision, Justice McKay stated [my emphasis]:
In this committal hearing, the court has a limited scope of issues to review. . . . There is a history of arrears going back to 1992 . . . . Essentially [the debtor] appeared at the committal hearing and argued issues about entitlement to the support in question. He has not established that there is a material change in circumstances since he consented to the default order.
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 in circumstances going to the debtor’s ability to pay, will be considered by the court.
[36] In Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825, 92 O.R. (3d) 721, the Ontario Court of Appeal was asked to make a pronouncement regarding the statutory power in making committal orders and the steps necessary to ensure that a person whose liberty may be compromised by a committal order is treated fairly.
[37] As a term of an adjournment of the default motion, the motion judge ordered that, in default of payment, Mr. Fischer would be incarcerated for a period of seven days on each and every default.
[38] At the appeal of the temporary default order, Justice Kent of the Superior Court of Justice allowed the appeal and struck the committal provision, as he found that the payor could be incarcerated without a default hearing being conducted and without having had the benefit of counsel to make submissions (reported at (2008), 2008 15901 (ON SC), 54 R.F.L. (6th) 264).
[39] The Director’s appeal to the Ontario Court of Appeal was dismissed. In its decision, the Ontario Court of Appeal made the following remarks:
(i) At the default hearing, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments, and the Director’s statement is presumed to be correct as to arrears owing;
(ii) A court can adjourn a default hearing and make temporary order under section 41(14) of the FRSAEA;
(iii) Subsection 41(10) of the FRSAEA describes the powers that the Court may exercise at a default hearing, “unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order”;
(iv) Under clause 41(10)(i) of the FRSAEA, the Court can direct imprisonment upon the payor failing to comply with payment terms of a default order;
(v) Imprisonment for non-payment is the enforcement mechanism of last resort;
(vi) Something more than non-payment is required;
(vii) The payor’s conduct must demonstrate a willful and deliberate disregard for the obligation to comply with court orders;
(viii) Imprisonment for non-payment is meant as a means of enforcing the support order and not as a means of punishing the payor;
(ix) The payor must be released upon payment of the amount owed;
(x) A committal order, whether temporary or final, is intended to induce compliance with the payment terms of the order;
(xi) 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 (at para. 25);
(xii) Courts should be hesitant to order the potential imprisonment to the payor absent the full inquiry into the merits of the proceedings;
(xiii) Where the matter is adjourned, any failure to comply with a temporary order may be more appropriately addressed when the default proceeding is back in court; and
(xiv) The payor must be aware of the nature and effect of the proposed committal order and given a fair opportunity to speak to the appropriateness of the imposition of a committal order.
Analysis
[40] This matter does not come before the Court in the first instance. It is presumed that the Respondent had the ability to pay the amount in the original order. Justice Johnston incorporated imprisonment into a coercive order that would hopefully result in payment.
[41] Where a payor is in default of support payments previously ordered, the Court hearing the request to issue a Warrant of Committal has the discretion under the legislation to direct the imprisonment of the payor.
[42] The issue is whether, in all the circumstances, the Court should exercise its discretion in favour of issuing the Warrant of Committal.
[43] No dispute was filed, but the Respondent’s affidavit must be limited to events arising after the date of the default order. Only evidence arising after the default hearing that establishes a material change of circumstances going to the debtor’s ability to pay, will be considered by the Court (Buffan, at para. 46).
[44] The Respondent has shown a disregard for court orders. He failed to pay support when he was employed, necessitating enforcement by the FRO. There have been numerous court orders against him, which remain unpaid, and he has been barred from bringing court actions until they are paid or until he provides security.
[45] The original $9,537.12 is calculated from 12 payments of $694.76 per month and $100 per month towards arrears, based on the order made by Justice Blishen on April 8, 2014, amending Justice Minnema’s order that required $1,000 per month.
[46] On a review of his filed notices of assessment, prima facie, he may have grounds to vary the original support order of Justice Manton, since his income is lower than at the time the original order was made.
[47] The Respondent has failed to make this action a priority in his life.
[48] However, the Court finds that there has been a material change of circumstances since the order of Justice Johnson for the following reasons:
the Respondent ‘s financial statement filed in March 2016 shows no income and he is currently unemployed;
The child has been living with him since at least April 2016;
He has been paying for his son’s travels to meet professional soccer teams and their personnel;
His resources have earmarked for his son’s future professional sport.
[49] The Respondent is caring for his son and there is no evidence that the mother is paying child support or contributing to Jaden’s financial needs.
[50] The Respondent reports that Jaden is progressing well academically and is an excellent soccer player, such that professional teams are interested in recruiting him. The payor is financially responsible to pay for Jaden’s travel expenses so he can attend the professional team’s soccer camps. It is in Jaden’s best interests that his father be there to support him, both financially and emotionally, in his academic and athletic pursuits.
[51] The Court questions how a jail term would serve Jaden and his current financial needs. Imprisonment is not meant to be punitive but it meant to act as an incentive for the payor to make good his payments.
[52] Therefore, the Court will suspend the issuance of the warrant of committal. Before the next court appearance before me, the Respondent is ordered to file the forms necessary to allow him to obtain an order for leave to proceed with his motion to change, request retroactive and ongoing child support from the mother and obtain an order for stay of enforcement. This matter is to return before me before February 17, 2017.
[53] There will be no order as to costs.
Justice A. Doyle
Date: December 5, 2016
CITATION: Ontario (Director, Family Responsibility Office) v. Vilfort, 2016 ONSC 7565
COURT FILE NO.: FC-02-583-E0
DATE: 2016/12/05
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: The Director, Family Responsibility Office for the benefit of Tanya Mathieu, Applicant
AND
James Vilfort, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Allan T. Hirsch, for the Applicant
No one appearing for the Respondent
ENDORSEMENT
Justice A. Doyle
Released: December 5, 2016