COURT FILE NO.: F247-13

DATE: 2017-10-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Director, Family Responsibility Office, Applicant AND: John Joseph Lucy, Respondent

BEFORE: The Honourable Madam Justice C. Chappel

COUNSEL: Mr. Sutter, for the Director, Family Responsibility Office, Applicant Mr. Russell, for the Respondent Payor

HEARD: October 27, 2017

ENDORSEMENT

[1] This was the hearing of a motion brought by the payor. He seeks the following relief:

a) An order setting aside the order of Brown, J. dated August 25, 2017 in the context of this default proceeding. That order committed the payor to a period of incarceration of up to 180 days, or until the arrears of $37,408.00 were paid, whichever was sooner ("the default order");

b) In the alternative, he requested an order varying the default order to provide that the payor commence a Motion to Change within 21 days, and scheduling a new default hearing;

c) The payor seeks an order that he be released forthwith from Hamilton-Wentworth Detention Centre; and

d) Finally, the payor requests that enforcement be limited to $1,006.00 monthly or 50% of his net pay, whichever is less.

[2] The arrears that the Director seeks to enforce relate to two orders, dated October 6, 2014 and August 30, 2013. As of August 25, 2017 those arrears totalled $37,408.00.

[3] By way of background respecting the default proceedings, the first appearance was on April 20, 2016. The payor attended on that date but not on the next date, on July 27, 2016. He was aware of the July 27, 2016 return date. Brown, J. issued a bench warrant on July 27, 2016 to be held in the Director's discretion. The payor did not attend again on October 5, 2016 and the bench warrant was extended. The payor again failed to attend court on December 14, 2016. He finally appeared on February 3, 2017 at which time he received legal advice and attendance from Ms. Ringuette.

[4] The hearing was further adjourned to April 28, 2017 at which time the payor attended and assured the court that he was proceeding with a Motion to Change final order. He failed to do so and he failed to appear on the return date of June 23, 2017.

[5] Goodman J. granted one last adjournment to August 25, 2017. The payor was given notice of this return date which was effective on July 10, 2017. He failed to appear. It was in the context of these numerous failures to engage in this process that Brown, J. issued the warrant of committal order on August 25, 2017.

[6] I turn first to the payor's request that the warrant of committal be set aside. He relies first on Rule 25(19)(e) of the Family Law Rules in support of this request. I am not satisfied that he has met the test for setting aside an order under that provision. I find that the payor received adequate notice. The payor has not provided me with a satisfactory reason as to why he was unable to attend. He acknowledges that the notice was sent to his correct address at the time but simply stated that it did not come to his attention. He indicated that he called the Family Responsibility Office to determine when the return date was and that he was told he would receive a formal notice in the mail. As I have stated, the Family Responsibility Office did send that notice. The reason it had to do so was because of the payor's failure to attend numerous court dates. The responsibility for missing court on August 25, 2017 falls squarely on the payor. He had no reasonable or satisfactory reason for missing the appearance on that date.

[7] The payor also however, relies on Rule 19.08 of the Rules of Civil Procedure. That rule provides that the court may set aside a default order or vary it on terms as are just. The caselaw establishes that the court may rely on Rule 19.08 to set aside a warrant of committal (see Mariani v. Mariani, 2015 ONSC 3007 (S.C.J.)). The factors that the court should consider in determining whether to grant such relief are as follows:

1. The ultimate issue on such a motion is whether it is in the interests of justice to set aside the default judgment. In deciding this issue, the judge should have regard for:

a) The potential prejudice to the moving party if the motion is dismissed;

b) The potential prejudice to the respondent should the motion be allowed; and

c) The effect of any order the motion judge may make on the overall integrity of the administration of justice (see Peterbilt of Ontario Inc. v. 156567 Ont. Ltd. (2007), 2007 ONCA 333, 41 CPC (6th) 316; 2007 ONCA 333 (C.A.)).

2. In assessing the issue of prejudice in the context of a motion to set aside a warrant of committal made in a Family Responsibility Office enforcement proceeding, the court should also consider any prejudice to the recipient from either granting or refusing the order (Mariani, at para. 67).

3. In carrying out the analysis required on such a motion, the court should be guided by the following considerations:

a) Whether the moving party moved promptly after learning of the order to have it set aside;

b) Whether the moving party has provided an adequate explanation for the default; and

c) Whether the moving party has an arguable case on the merits in the Family Responsibility Office default proceeding itself.

These three considerations are guidelines only for the court's exercise of its discretion, and are not rigid preconditions to the exercise of the court's discretion (Peterbilt; Mariani; Ont. (Director of Family Responsibility) v. Dick, 2013 ONCJ 198 (O.C.J.)).

4. The exercise of the court's discretion on a motion to set aside a warrant of committal issued under the Family Responsibility and Support Arrears Enforcement Act, 1996. S.O. 1996, C.31, asam., should also be guided by the purposes of incarceration in this context. The caselaw establishes that imprisonment in the context of support enforcement is meant as a means of enforcement, and not as a means of punishment. The enforcement rationale for imprisonment upon non-payment of support only makes sense if the payor has the ability to pay the support and fails to do so (Mariani, para. 56).

[8] I have carefully considered these factors in relation to the evidence adduced on this motion, and I conclude that it is in the interests of justice that the warrant of committal be set aside. My decision is based on the following:

1. The payor did in my view move as quickly as he could, given his incarceration and limited financial means to bring this motion. He eventually received funding from his parents to initiate this proceeding;

2. The prejudice to the payor of dismissing this motion is enormous. He has already been incarcerated for almost two months and faces a further period of 150 days' incarceration if the motion is dismissed. I am satisfied based on his Financial Statement sworn October 23, 2017 that he does not have the financial means to pay the arrears in full;

3. The payor has secured employment that will provide him with monthly income of approximately $3,000.00. There is correspondence filed from his employer that this job remains available to him. Accordingly, allowing the order will allow the Family Responsibility Office to enforce the arrears, since the payor has provided his employer's address;

4. The point set out above is relevant to the issue of prejudice to the recipient, who has an interest in receiving the support owed to her;

5. I have considered the importance of upholding the integrity as the administration of justice, and the effect of my order on this objective. I do have significant concerns respecting the payor's flagrant disregard for the court process in his child support obligations. However, I must balance those concerns as against the other factors that I have already referred to and, in my view, the balance tips in favour of setting aside the order.

6. I have considered whether the payor has an arguable case on the merits in the default proceeding. The evidence satisfies me that he does. I am not satisfied that he is able to pay all of the arrears of support in full at this time. His financial situation has changed significantly since the child support order was made. The evidence supports a conclusion that if a default order were to be made, it would not provide for a committal of the payor to incarceration but rather a much less drastic remedy;

7. Finally, I have considered the purpose of incarceration in the context of Family Responsibility Office enforcement. That purpose relates to enforcement, not punishment. To keep the payor in jail at this point serves no enforcement purpose but would simply amount to punishment. He has already been in jail for just shy of two months and clearly cannot pay the arrears in full. An order setting the warrant of committal aside supports the enforcement objectives of the Family Responsibility and Support Arrears Enforcement Act.

[9] I turn to the payor's request for an order limiting enforcement of child support, including arrears, to no more than $1,006.00 per month, which is the amount of this monthly child support obligation under the existing order dated October 6, 2014. I decline to make this order. The Family Responsibility Office should at this stage be permitted to enforce to the maximum of 50% of the payor's net pay as allowed for under the legislation. The arrears in this case are significant, and the payor will be earning an income of approximately $3,000.00 per month (net). Although garnishment of 50% will likely be difficult for the payor, I am not satisfied based on the evidence before me that it will cause any undue hardship for him. Furthermore, the estimate respecting his income does not include any overtime opportunities. The issue of limiting the amount of enforcement is more appropriately addressed in the context of the Motion to Change Final Order that the payor will be commencing.

[10] Based on the foregoing, order to go as follows:

1. The warrant of committal dated August 25, 2017 is hereby set aside;

2. The payor, John Joseph Lucy, shall be immediately released from the Hamilton-Wentworth Detention Centre;

3. The payor shall commence a Motion to Change Final Order by no later than November 17, 2017 and shall serve a copy of same on the Family Responsibility Office;

4. The Director of Family Responsibility's default proceeding is revived, and a new default hearing is scheduled for December 8, 2017 at 10:00 a.m.; and

5. The payor's request to limit enforcement of child support arrears to $1,006.00 per month or one-half of his net pay per month, whichever is less, is dismissed.

Chappel, J.

DATE: October 27, 2017