CITATION: Durrant v. Director, Family Responsibility Office, 2017 ONSC 6274
COURT FILE NO.: FS-09-353057
DATE: 20171019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CLARENCE JAMES DURRANT
Applicant
– and –
FAMILY RESPONSIBILITY OFFICE
Respondent
L. Basman, Duty Counsel for the Applicant
F. Amaral, for the Respondent
HEARD: October 19, 2017
M. D. FAIETA j.
reasons FOR DECISION
[1] Following an uncontested trial, the Applicant was ordered by Justice Paisley on March 31, 2010 to pay child support to his former spouse, Meterene Durrant, in respect of his two sons in the amount of $1,254.00 per month, plus special or extraordinary expenses of $1,597.00 per month, spousal support of $3,467.00 per month and costs of $17,000.00.
[2] It appears that the Applicant sought to bring a motion to vary the above order. On April 17, 2012, Justice Perkins granted the Applicant a brief adjournment on condition that he pay the sum of $30,000.00 on account of costs ordered against him to date and the costs of that day $1000.00. by April 27, 2012.
[3] On May 1, 2012, Justice Klowak ordered that the Applicant’s pleadings, including his motion to change, be struck out. She also ordered that the Applicant was prohibited from bringing any further motions until he had complied with various orders, including the orders described above.
[4] The Applicant received a letter from the Family Responsibility Office (“FRO”) dated September 13, 2017 which states that the owes $726,496.14 in child and spousal support and that FRO will direct the Registrar of Motor Vehicles to suspend his drivers’ licence immediately unless he: (1) makes full payment; (2) enters into a voluntary arrears repayment plan with the FRO; or (3) gets a refraining order to prevent the FRO from suspending his licence.
[5] The Applicant states that he does not financial means to pay the arrears in full at this time. He filed for bankruptcy in 2014. He states that he has been unable to work between 2014 and 2017. He is currently attempting to resume employment as a contractor.
[6] There is no evidence that the Applicant sought to negotiate a voluntary arrears repayment plan with the FRO or with his former spouse, Meterene Durrant. Instead, the Applicant has pursued the third option of seeking a refraining order. His notice of motion was filed on October 12, 2017 and served on the FRO on October 13, 2017. There is no evidence that this Application was served on Meterene Durrant.
[7] This Application raises two issues:
• Does the Applicant have standing to bring this motion given that Justice Klowak’s order? And,
• Does the Applicant meet the test for the issuance of a refraining order?
Issue #1: Is the Applicant barred from bringing this motion that asks the court to issue a refraining order against the FRO?
[8] The Applicant brings this motion for an order under s. 35 of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, Chapter 31 (“FRA”), requiring that the Director refrain from directing the suspension of his driver’s licence. Even though he has not brought a motion to change the support order, the Applicant undertakes to obtain, within 20 days, a court date for the motion to change the support order pursuant to section 35(4) of the FRA.
[9] I accept the Director’s position that this motion is caught by the prohibition found in Justice Klowak’s order.
[10] The Applicant could have, but did not, bring a motion to vary not only the support order but also Justice Klowak’s order prior to, or at the same time, as this motion.
Issue #2: Does the Applicant meet the test for the issuance of a refraining order?
[11] I accept the FRO’s submission that the test for the issuance of a refraining order, described in Yip v Yip 1988 CanLII 4472 (ON SC), [1988] OJ No. 2784, requires that the applicant demonstrate: (1) a prima facie case for variation; (2) “clean hands”.
[12] The Applicant submits that there has been a material change in circumstances in that he was disabled and unable to work from 2014 until 2017. He provides medical evidence to support this statement.
[13] I also accept the Director’s submission that the Applicant’s financial statements appear dubious. His financial statement sworn October 11, 2017 discloses no income but also expenses of $323.83 per month primarily for automobile expenses and health insurance premiums. It discloses no debts and two assets – a truck ($2,300) and a bank account with $216.00.
CONCLUSIONS
[14] For the reasons given, I dismiss the Application.
[15] As noted earlier, and acknowledged by the FRO at the hearing of this Application, the Applicant is at liberty to bring a motion to vary Justice Klowak’s Order, the support order (which could include making arrangements for a payment plan), on notice to Meterene Durrant and the FRO, in order to have his driver’s licence reinstated.
[16] No costs are ordered.
Mr. Justice M. D. Faieta
Released: October 19, 2017
CITATION: Durrant v. Director, Family Responsibility Office 2017 ONSC 6274
COURT FILE NO.: FS-09-353057
DATE: 20171019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CLARENCE JAMES DURRANT
Applicant
– and –
FAMILY RESPONSIBILITY OFFICE
Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: October 19, 2017