Court File and Parties

Court File No.: FC-20-55777-E000 Date: 2022/06/28 Superior Court of Justice - Ontario

Re: The Director, Family Responsibility Office For The Benefit of Olja Radivoisa Janic, Applicant

And: Milan Janic, Respondent

Before: Madam Justice J. Breithaupt Smith

Counsel: Melanie Llerena, Counsel for the Applicant David A. Sloane, Counsel for the Respondent

Heard: March 28, 2022

Endorsement

Scope

[1] The Director of the Family Responsibility Office (the “Director”) seeks a Temporary Default Order requiring the Respondent, Mr. Milan Janic (the “Payor”), to pay $2,000 monthly ($1,392 in ongoing support plus $608 toward arrears), with default in payment to trigger a three-day term of incarceration and with the Director being able to move for a Warrant of Committal in the event of default. The Temporary Default Hearing was argued before me on March 28, 2022. This is my decision on the merits.

Uncontested Background Facts

[2] The Director is enforcing the Final Order of Justice D. J. Gordon dated January 6, 2021 which issued as a result of an uncontested trial (the “Final Order”). The Payor and the Recipient, Ms. Janic, separated on February 28, 2019 when the Payor moved out of the parties’ matrimonial home. The matrimonial home was refinanced in August of 2019. Part of the refinancing transaction involved the Payor and the Recipient jointly swearing a statutory declaration which indicated that the Payor would receive $115,000 from the transaction from which he would pay out a small line of credit in the amount of roughly $5,000. The details of that transaction are discussed further below.

[3] The Final Order is based upon an income imputed to the Payor of $93,500 and includes arrears of child support fixed at $32,016 as of December 31, 2020. As of March 21, 2022 (inclusive of the March 1st payment obligation), arrears totaled $52,954.

[4] The Payor was arrested twice as an “absconding debtor” under section 49(1) of the Family Responsibility and Support Arrears Enforcement Act (the “Act”)[^1]. In enforcement action prior to this matter, the Payor’s Ontario Driver’s License was suspended and his Canadian Passport was surrendered. He brought a Motion to Set Aside the Final Order in early January of 2021, and it was dismissed on January 22, 2021. In dismissing the Motion to Set Aside the Final Order, Justice Gordon held that the letter from the Payor’s physician which commented on the Payor’s inability to work due to “anxiety and relationship and generalized stress” was inadmissible as expert evidence supporting the alleged medical condition.

[5] Mr. Janic travelled to Serbia and Croatia in August of 2021. While there, the Canadian government wrote to him requiring the immediate surrender of his Canadian Passport. He surrendered that document to the closest Embassy and returned to Canada in December using his Croatian Passport. He was arrested upon his return. Mr. Janic surrendered his Croatian Passport as a condition of his release on December 23, 2021. He further undertook to serve and file responding materials in this enforcement action by February 10, 2022 (which he did) and to copy the Director with his Motion to Change or Motion to Strike materials by February 18, 2022. He has not commenced a Motion to Change or Motion to Strike proceeding. The enforcement action returned to Court to be spoken to on Monday, June 27, 2022, and an Order was made on consent compelling the Payor to commence his litigation not later than September 2, 2022.

Parties’ Positions

[6] The Director relies upon the Act which gives the Court the same powers at a Temporary Default Hearing as at a Final Default Hearing. In that context, and on the basis of the imputed income to the Payor of $93,500, the Director takes the position that monthly payments of $2,000 (being $1,392 in on-going child support plus $608 toward arrears) are entirely just in the circumstances. The Director argues that a payment order without the incarceration term will be toothless and readily flouted by Mr. Janic, who has only participated in this enforcement action as a result of his arrests.

[7] Mr. Janic asks to pay no child support (either ongoing or arrears), or in the alternative he asks that there be no committal terms associated with default in payment. He attests that he has a “valid reason” for his default per Rule 41(10), namely that he was medically obligated to resign from his employment due to stress. He further argues that he has pre-paid child support up to August 1, 2022 as a result of: (1) the conversion $13,500 (in the form of vacation pay deposited to a joint bank account) by Ms. Janic; and (2) the alleged receipt of $48,000 by Ms. Janic from a mortgage refinancing transaction. He comes before this Court asking for clear direction in the test to be applied on a Temporary Default Hearing where a Payor has a prima facie case: (1) supporting a variation of the underlying support order; (2) demonstrating a “valid reason” for default; and (3) showing his good faith in accepting responsibility for his support obligation.

[8] The Director agrees that judicial direction regarding the test(s) to be applied in the context of a Temporary Default Hearing would be extremely helpful for this and future matters. With respect to the “valid reason” for the Payor’s default, Ms. Llerena argues that the standard set out in Ontario (Director, Family Responsibility Office) v. O’Neill[^2] has not been met. Specifically, she says that the Payor has not tendered sufficient and proper medical evidence supporting his claim, he cannot make out a valid medical reason excusing his default, and thus his case must fall flat.

Law and Discussion

[9] The applicable portions of section 41 of the Act read:

41(9) At the default hearing, unless the contrary is shown, the Payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director’s office.

(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;

(c) comply with the order to the extent of the Payor’s ability to pay;

(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.

(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.

[10] The Family Responsibility Office (“FRO”) is a creature of statute, created by the Act and having its own procedural scope as set out at portions of Rules 26; 29 and 30 of the Family Law Rules[^3]. The Director’s enforcement role displaces a number of the mechanisms otherwise available to civil litigants seeking recovery due to them pursuant to Orders of the Court. In multiple places, the statutory language of the Act narrows broader legal principles and limits the Court’s discretion in areas of procedural fairness. Even more so than in the general sense, in FRO matters, the analysis must be firmly grounded in the statutory language:

Subject to a constitutional challenge, and none is made in this case, the statute should be given effect according to the plain meaning of its language.[^4]

[11] There is very little jurisprudence regarding Temporary Default Orders; most of the reported caselaw was decided at Final Default Hearings. Counsel referred the Court to the case of Ontario (Director, Family Responsibility Office) v. Kumar[^5], the reasoning in which was followed by the case of Ontario (Director, Family Responsibility Office) v. Felizardo[^6].

[12] In the 2017 case of Kumar, the Director was enforcing a Final Order reached on consent in November of 2016 involving a total of $12,316 in monthly support and expense contributions and $300,000 in arrears. The consent underlying the Final Order stipulated that until the end of the 2018/2019 academic year, “the support obligations hereunder cannot be changed regardless of whether or not there is a material change in either party’s circumstances.” Four days after the Final Order was signed, the Payor was in default. The Payor declared bankruptcy in March of 2017 after serious turmoil in his relationships with his employer (who sued him) and with the Canada Revenue Agency. The Payor brought a motion in the context of the Default Hearing asking to pay $892 monthly in ongoing child support; $750 monthly toward arrears of child support; and nothing on account of either aspect of spousal support. These amounts were predicated on the Payor’s own view of what he would be able to pay should he earn $60,000 annually at future employment. The Director sought payment of the ongoing amounts of child and spousal support in accordance with the underlying support order (effectively conceding a temporary suspension of payments toward arrears). The parties agreed upon a three-day committal term.

[13] The facts of last year’s case of Felizardo bear more similarities to those in the case at bar. The Director was enforcing a Final Order made following an uncontested hearing in which the Payor was ordered to pay support of $5,000 monthly. The Payor’s income had been imputed. Arrears accumulated to almost $385,000 and, despite multiple representations that he would do so, the Payor did not commence a Motion to Change until almost two years into the Default Hearing proceeding. The Payor had not complied with procedural orders of the court (in that case, disclosure orders; here, the timeline for commencing a Motion to Change) and spent some time in jail. On motion in the Default Hearing proceeding, the Payor sought to pay nothing on account of arrears or ongoing support. The Director asked simply that the Payor’s motion be dismissed such that enforcement could continue.

[14] Both of the above cases relied upon the prima facie case approach. For the reasons that follow, I find that such an approach is warranted only after the Payor has satisfied the Court that there is a “valid reason” excusing default. Where no such “valid reason” is demonstrated, the Court is limited to the options set out in the sub-sections of section 41(10) of the Act.

[15] Broadly, the questions for consideration are: Can the Court alter the terms of payment of support in the context of a Temporary Default Order? If so, when should it do so?

[16] The issue, of course, is that the quantum of support has already been adjudicated. Conclusions have been reached by the Court regarding the Payor’s income and the financial circumstances of all involved. The Default Hearing process cannot be used to undermine the findings of the judge who made the support order. Justice Starr articulated the problem clearly in Kumar[^7]:

… another court has already determined that the level of support is appropriate based on the Payor’s ability to pay. The judge presiding over a default hearing must be careful as the default order he or she makes may effectively grant the respondent the relief he may not be able to obtain on the merits in any motion to change.

[17] The threshold question is whether the Payor has demonstrated a “valid reason” that (s)he is unable to meet the payment obligations under the support order. If the Payor can do so, the statutory text provides no guidance as to the Court’s discretion in addressing the situation: the field is wide open, so to speak. I agree with my Ontario Court colleagues that a Payor with a valid reason excusing the default should then show a prima facie case for a change to the support order, inclusive of a material change in circumstances since the support order was made. The Court takes an expansive view of the situation as a whole. The Court analyzes the Payor’s prima facie case for changing or setting aside the underlying support order and adjusts the payment obligations accordingly. The Default Order is made on a temporary basis pending the outcome of the anticipated Motion to Change proceeding. This is a sensible and practical approach, as it seems likely that much of the evidence in support of the “valid reason” will also substantiate a need to vary the underlying support order in the parallel proceeding.

[18] However, in my view, demonstration of a “valid reason” is an essential prerequisite before any discussion of a prima facie case for variation is to be undertaken, and in this regard my colleagues and I part ways. A Payor who has failed to convince the Court of a “valid reason” for default should not be given a further opportunity at the Default Hearing to argue that the underlying support order is ill-founded. Such a Payor must be limited at the Default Hearing to the focus set out in the statutory language; the forum for attacking the underlying support order is in the context of the Motion to Change proceeding.

If the Payor cannot demonstrate a “valid reason” excusing his or her default, the Court is authorized to select from among the options under Section 41(10).[^8] As the Court of Appeal stated in Fischer[^9]:

Section 41(10) sets out the panoply of remedial powers available to the court on the disposition of the default hearing. Any one of those powers may be exercised by the court unless it is satisfied that the Payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order.

[19] Section 41(10)(a) authorizes an adjustment of arrears payments but states both that payments must be towards “all or part of the arrears”; and that partial payment does not rescind any unpaid arrears. Where a Payor has not demonstrated a valid reason for non-payment, arrears payments ordered at a Default Hearing therefore cannot be $NIL (as ZERO is neither “all” nor “part” of the arrears). Unpaid arrears continue to accrue under the support order regardless of the disposition at the Default Hearing.

[20] Section 41(10)(c) appears at first to confuse the issue by authorizing the Court to order the Payor to comply with the support order “to the extent of the Payor’s ability to pay.” In contending with this sub-section, one could easily focus on the phrase “the Payor’s ability to pay” and turn one’s mind to the possibility that the Payor does not have the ability to pay the amount mandated by the support order for ongoing payments. Again, this would be inconsistent with the statutory presumption that the Payor can make the payments under the support order (described as “subsequent payments” at Section 41(9)). This Court will not speculate as to what exactly the drafters of sub-section 41(10)(c) might have meant, but it behooves us to presume that the chosen language is not intentionally inconsistent. It is not possible to order compliance with a support order that does not involve payment of the amount ordered. Further, it is only the arrears payments which can be adjusted at the Default Hearing. There is no sub-section akin to 41(10)(a) addressing ongoing or “subsequent” support payments. I therefore conclude that it is in determining the overall payment toward both ongoing support and arrears combined that the Court must consider the Payor’s ability to pay.[^10]

[21] We must presume that the Legislature intended the various sub-sections of Section 41 to work in concert with, rather than in opposition to, one another. To import the possibility that a material change in circumstances can ground an adjustment to the ongoing payments required by the underlying support order undermines the presumption-and-rebuttal process set out at Sections 41(9) and 41(10). Doing so would provide a Payor who is already in default of the support order, and who has not satisfied the Court of the validity of his or her excuse for that default, with a further avenue to side-step enforcement.

[22] In sum, the principles of the Temporary Default Hearing process are:

a. Section 41(14) of the Act speaks to the making of a Temporary Default Order in the same manner as the making of a Final Default Order.

b. The statutory presumption of the Payor’s ability to pay in Section 41(9) can be rebutted with a “valid reason” excusing the default. Three components make up the test for demonstrating a “valid reason”: (1) the Payor’s financial predicament is not voluntary; (2) the Payor has accepted responsibility and placed the child’s interests first; and (3) the Payor has provided full and frank disclosure to the Court.[^11]

c. If the alleged “valid reason” is disability causing under- or unemployment, “[the] onus is on the Payor to prove that a medical excuse provided a reasonable explanation to justify his underemployment.”[^12]

d. Where the Payor is able to demonstrate a “valid reason,” the analysis of a prima facie case comes into play to assist the Court in crafting an interim resolution that is appropriate in the circumstances.

e. Where the Payor is unable to demonstrate a “valid reason,” the Court is to select from the available options under section 41(10). Validating non-compliance with the underlying support order vis-à-vis ongoing support by reducing the ongoing support amount is not an available option. However, adjusting or suspending enforcement of arrears can be done to accord with the extent of the Payor’s ability to pay. A term of incarceration on further incidence of default is available where “the Payor’s conduct [demonstrates] a willful and deliberate disregard for the obligation to comply with court orders.”[^13]

f. If, during the course of the default proceeding, the Payor experiences a material change in circumstances, Section 41(15) of the Act empowers the Court to change the Temporary Default Order on motion.

Application and Conclusions

[23] Thus, the questions for this Court, arising from the statutory presumptions, evidence and relief sought in this particular matter, are:

1. Has the Mr. Janic demonstrated a “valid reason” satisfying the Court that he is unable to meet his obligations under the Final Order?

2. If so, what is the appropriate disposition to address the situation on an interim basis?

3. If not, what is the appropriate disposition amongst the options provided at Section 41(10) of the Act?

Any Valid Reason for Inability to Pay?

[24] Recall that the Act specifically presumes that: (1) the Payor is able to pay the accumulated arrears arising from the support order; (2) the Payor is able to pay the ongoing (“subsequent”) payments set out in the support order; and (3) the Director’s Statement of Arrears provides a correct calculation of the outstanding amount as of a fixed date. The Director need not prove these contentions, it is for the Payor to rebut their presumptive truth. The standard of proof is the balance of probabilities. Credibility of the Payor is a central consideration, which can present a challenge in the context of the Temporary Default Hearing where evidence tendered in writing has not been tested by cross-examination.

[25] I pause here to note that much was made of the uncontroverted nature of the Payor’s evidence. This speaks precisely to the unique nature of a Temporary Default Hearing when there is no evidence tendered by the Director to refute the Payor’s evidence and no cross-examination has taken place. While it is certainly important to note, as Mr. Sloane did capably, that the Director could have filed a responding Affidavit[^14] to refute the Payor’s evidence, it is nonetheless the Payor’s burden to convince the Court to displace the statutory presumptions in his favour. The Court must take a careful look at the Payor’s evidence; it would be incorrect to suggest that the Court is somehow bound to accept it as true simply because no alternate viewpoint has been tendered. Even uncontroverted evidence can be misleading or unhelpful in the fact-finding endeavour.[^15] In Felizardo, the Court impugned the Payor’s credibility, relying on the Payor’s own evidence and behaviours in the context of the litigation without referring to any specifically contrary evidence from any other source, writing[^16]:

Based on the Payor’s various statements about his reduced income that are often contradictory and without any corroboration, I have serious concerns about the Payor’s credibility.

[26] There are three significant problems with the Payor’s narrative which lead this Court to conclude that his evidence cannot be trusted: (1) his financial relationship with his parents, including resources made available to him in Europe; (2) his interpretation of a document generated to refinance the matrimonial home in August of 2019; and (3) his description of an alleged “Support Prepayment” made as part of the refinancing transaction.

[27] Mr. Janic attests that his parents charged him $800.00 monthly in room and board when he resided with them from February 28, 2019 onward. Oddly, although he left for Europe in August of 2021, he attests that these room and board charges “have been in arrears since December 2021.” This suggests both that his parents continued to charge him for the last four months of 2021 while he was in Europe and that he was able to pay those amounts. In that context, his contention that he travelled to Europe “with financial assistance from my parents” does not make sense. Further, he states that he attended a mental health clinic in Europe for two weeks but does not explain who funded that experience, nor does he attach any documentation whatsoever to corroborate his story. He simply asserts that the stay at the clinic failed to cure him of his stress-related condition. Mr. Janic’s evidence regarding his financial relationship with his parents is inconsistent and casts a shadow over his credibility.

[28] It is undisputed that the matrimonial home was registered solely in the name of Ms. Olga Janic. As a result, when it was refinanced in August of 2019 (post-separation), the lender required a statutory declaration to be signed by both married spouses. That document (called the “Refinancing Affidavit” in Mr. Janic’s materials) is dated August 16, 2019 and contains four paragraphs. The three paragraphs relevant for our purposes read:

2. We are separated, do not pay support to one another of any kind, and will not in the future pay support to one another of any kind.

3. Milan Janic shall receive $115,000 from the proceeds of the subject mortgage.

4. Milan Janic shall pay the line of credit of $5,050 from his share of the proceeds, as well as any writs and liens under his name from his share of the proceeds.

[29] No issues had yet been settled in writing between the spouses to address the division or property or the support of the Janic children. Therefore, upon seeing the draft version of the statutory declaration, Ms. Anamaria Pasc, Ms. Janic’s matrimonial litigator, quite correctly expressed serious concern, warning her client by email on August 9, 2019 at 3:34 p.m.:

Then that means you are all swearing a false affidavit to provide the financial institution for your mortgage. This is illegal and I am still concerned that it could come back to you as fraud.

Why is #2 even necessary? Can we just remove that and include a clause that says neither one of you will seek further property division from one another?

[30] Ms. Pasc was absolutely correct to raise this concern with her client. As Ms. Pasc was advising her client, Mr. Janic was also writing to Ms. Janic. At 3:35 p.m. on August 9, 2019, he sent the following email [emphasis added]:

Hi Olja,

Use this email as a legal binding document that the affidavit is to be used only for the purposes of the property transaction and nothing else. This will not affect any of the separation agreements that will follow regarding my obligations towards the payments required for our children.

I repeat I will not be using the affidavit in question for any other purpose than the completion of the mortgage transaction.

If you wish please draft up a new agreement that will cancel the affidavit once the mortgage has been put [through].

Kind regards,

Milan Janic

[31] Ms. Janic forwarded Ms. Pasc’s cautionary email to Mr. Janic shortly after reading it. At 4:08 p.m., Mr. Janic wrote back to Ms. Janic: “Nothing will happen illegally. I will not let my children suffer any consequences. This is dragging on too long. Each email your lawyer writes costs money.” One week later, the Janics attended at the office of a “Walk-In Notary” and signed the statutory declaration. The transaction closed on August 28, 2019.

[32] Mr. Janic’s explanation of his two emails is, itself inherently contradictory. He attests that: “In the circumstances, I expressed a willingness to confine the effect of the Refinancing Affidavit to the Transaction only, and not to child support, and that the Refinancing Affidavit could be subsequently cancelled.” In the following paragraph of his Default Dispute, he claims that by the phrase “Nothing will happen illegally,” he meant that the Refinancing Affidavit “would not be confined to the Transaction, that I had effectively prepaid child support, and that I would not agree to subsequently cancel the document.” Let’s repeat that: at paragraph 6(b) of his Default Dispute, Mr. Janic says that the Refinancing Affidavit was only to deal with the Transaction itself; at paragraph 6(c), he claims that the Refinancing Affidavit also applied to his supposed prepayment of child support, which is mentioned nowhere in the documentation produced.

[33] I find, in fact, that both of Mr. Janic’s emails to Ms. Janic had exactly the same goal: to assuage Ms. Janic’s worry that he would rely upon the Refinancing Affidavit to later claim that he did not have to pay child support.[^17] First, he assures her that his support obligations for the children would not be affected by the Refinancing Affidavit, and that he specifically would not rely upon it for anything other than to close the refinancing transaction. He then underscores that assurance (“I will not let my children suffer any consequences.”) and increases the pressure on Ms. Janic to get the deal done (“This is dragging on too long. Each email your lawyer writes costs money.”). It defies credulity to think that Mr. Janic would not have expressed himself clearly had he wanted to receive credit for prepaid support. He wanted to be paid out for his interest in the matrimonial home and was willing to sign the lender’s statutory declaration to make that happen even if the contents of the document did not exactly match the reality of the situation.[^18] He told Ms. Janic what she needed to hear at the time in order to get the refinancing transaction closed. While this Court is not directly concerned with the details of the refinancing transaction, I find that Mr. Janic’s credibility is generally further impugned by his illogical description of the meaning of his emails and the Refinancing Affidavit.

[34] Narrowing the focus further, Mr. Janic would have this Court believe that the refinancing transaction included a child support prepayment of $48,000. Nowhere does that figure appear in the documentation from August of 2019. The trust ledger statement shows a number of payouts, including the $115,000 allocated to Mr. Janic as described in the Refinancing Affidavit. Mr. Janic would have this Court believe that the $115,000 was not, in fact, paid to him. He insists, without corroborating evidence, that: “[the $115,000] was actually allocated to a variety of third parties, including to Olja, in the form of the Support Prepayment (i.e. $48,000.00).” He produced no evidence in support of this story. Even if Ms. Janic had refused to confirm receipt of the $48,000 alleged to have been paid over to her, Mr. Janic could have supported his story with evidence regarding the “variety of third parties” paid out. He could have presented, for example: a signed Direction RE: Funds instructing the real estate lawyer to reapportion his money; receipts issued by the third parties proving the payments made to them; or even statements pre-dating the refinancing transaction issued by the third parties specifying the amounts they expected to receive out of Mr. Janic’s $115,000. Nineteen (19) days passed between Ms. Pasc’s warning about the Refinancing Affidavit and the closing of the refinancing transaction, ample time for specifics regarding the allocation of funds to be spelled out clearly in writing as part of the real estate documentation. An Ontario lawyer’s obligations to document trust transactions are described at Part V of the Law Society of Ontario’s By-Law 9.[^19] This Court will not presume that the real estate solicitor acted contrary to the mandatory practices for documenting trust account transactions. Again, I do not believe Mr. Janic’s version of events.

[35] Because Mr. Janic’s narrative does not hang together on these central points regarding his overall financial circumstances, I give his evidence no weight wherever it is uncorroborated.

[36] Mr. Janic contends that he is unable to pay anything as he is unemployable due to a medical condition. He resigned his employment in late 2019. Having regard to my finding that his evidence is to be given no weight absent independent proof, he must prove his medical condition using corroborating evidence.

[37] This brings the analysis to the point made by Ms. Llerena on the Director’s behalf: medical evidence must be properly admissible as expert evidence and must demonstrate a “valid reason” for medically-excusable underemployment on the balance of probabilities. In O’Neill, the Payor presented stale-dated letters from his doctors providing a diagnosis of depressive and/or generalized anxiety disorder with anti-depressant medication as the recommended treatment. The doctors were not called as witnesses and their credentials were not provided. Mr. O’Neill refused medication for several years and presented no evidence of other steps taken in an attempt to improve his mental health. The Court held that his evidence fell short of the type required to support a claim for inability to pay for medical reasons, and guided future Payors as to the proper presentation of medical proof of a disabling condition:[^20]

These sorts of letters require at least the following information: diagnosis; prognosis; treatment recommendations; is the patient compliant with treatment recommendations; clear statement and information about the patient’s condition and its relationship to ability to work.

[38] Here, the Payor presents the same letter from Dr. Mirwais Sayar dated January 7, 2021 that he tendered on his Motion to Set Aside the Final Order which was dismissed by Justice Gordon on January 22, 2021. Having regard to all manner of delay across every walk of Canadian life due to the COVID-19 situation, I will give Mr. Janic the benefit of the doubt and disregard the date of the letter. In its entirety, the letter reads [sic]: “I would like to inform you Mr. Janic Milan has been under my care since 2008. Due to the anxiety and relationship and generalized stress he has not been able to work since Nov 2018.” Although Dr. Sayar is the Payor’s treating physician, he is also a litigation expert in the context of this Default Hearing as he has been “engaged for the purpose of litigation to provide expert opinion evidence.”[^21] The letter was obtained by Mr. Janic for litigation purposes, and in it Dr. Sayar comments on the reason why Mr. Janic has been unable to work. Rule 20.2(2) describes the mandatory minimum contents of the report of a litigation expert. Only one of the seven criteria set out in the rule has been met, namely provision of the expert’s name, address and area of expertise. This is likely why Justice Gordon rejected the letter as improperly tendered hearsay evidence in January of 2021. The same is true today, and I would add that the contents of the document do not provide any of the information points that Justice Curtis listed in O’Neill. The letter from Dr. Sayar is not properly tendered and, even if it were to be admitted into evidence, I would give it no weight as it does not provide the information this Court needs to determine whether Mr. Janic has a valid medical reason excusing his default.

[39] To conclude, I do not believe Mr. Janic’s testimony that he is unable to make support payments under the Final Order due to his medical disability. I require any such evidence to be corroborated in order to be assigned any weight. The sole document tendered in corroboration is inadmissible hearsay evidence that is not properly presented as an expert report. However, even if I were to admit that document as properly tendered, it contains none of the necessary information and thus is of no value to the Court in this analysis. I find that Mr. Janic has failed to demonstrate a valid reason excusing his default.

Disposition Under Section 41(10) of the Act

[40] As Mr. Janic has not convinced the Court that he has a valid reason excusing his default, the analysis turns to the balance of section 41(10) for disposition. Of the available options set out at Section 41(10), the parties focus on three: the payment of arrears (subsection (a)); the payment of ongoing support (subsection (c)); and incarceration in the event of default (subsection (i)). As discussed above, I do not interpret Section 41(10)(a) as authorizing the Court to order that no amount be paid toward arrears. The payment may be negligible, but it must be something other than $NIL. Further, I do not interpret Section 41(10)(c) as allowing the Court on Default Hearing to alter the ongoing support amount, as doing so is inconsistent with compliance with the underlying support order. Thus, in crafting an order that the Court considers just and that reflects the Payor’s ability to pay, we must answer the following questions:

a. Does the Payor have any ability to pay arrears whilst complying with the ongoing support term of the Final Order?

b. What payment amount on account of accumulated arrears is “just”?

c. What term, if any, of imprisonment on the event of default is appropriate?

[41] Unfortunately, Mr. Janic’s Financial Statement provides no assistance in determining his ability to pay. Presumably, he is somehow surviving, but he indicates $NIL income, no assets of any kind and only debts (three credit cards and a loan from his parents). He does not appear to have applied for Canada Pension Plan or provincial Disability Benefits, despite his alleged medical condition. His Financial Statement seems intentionally vague, and again defies credulity. It is his onus to set out his financial situation in sufficient detail to assist the Court in assessing it.

[42] Mr. Janic is statutorily presumed to be able to pay the ongoing support amount. I find that he has no room for anything other than a notional payment toward arrears. I thus order that he pay the ongoing support amount, $1,392.00 monthly, plus $3.00 toward arrears on an interim basis, for a total of $1,395.00 monthly.

[43] With respect to a term of committal for non-payment, I will again give him the benefit of the doubt. Although he has never made a voluntary payment and has failed to commence the Motion to Change as he had undertaken to do upon his latest release from jail, the Director has recently agreed to allow him until September 2, 2022 to commence some form of parallel litigation. I am mindful of the Court of Appeal’s caution in Fischer that a term of committal is not intended to punish a Payor, but rather to encourage the Payor to rectify the situation. A lengthy or repetitive jail term will be of no assistance to the Janic children in ensuring the flow of support due to them from their father. I am also persuaded by the excellent advocacy provided by Mr. Janic’s counsel, Mr. Sloane. I have confidence that, provided Mr. Janic maintains the solicitor-client relationship, Mr. Sloane will commence the Motion to Change litigation so that the substantive terms of the underlying Final Order can be addressed in the proper forum. As noted, the most recent return of this enforcement action resulted in the parties’ consent to a term requiring his litigation to be commenced by September 2, 2022. Finally, regrettably there are currently no conference dates available in our jurisdiction for several months and so judicially-driven forward movement is unlikely before year end. I will therefore order that the committal term of three (3) days for each event of default will not be triggered until January 1, 2023. Should Mr. Janic do nothing, and remain in default, the consequences for him will be swift and significant.

Temporary Order

[44] The following Temporary Default Order shall issue:

1. The support arrears outstanding are $52,954.00 as of March 21, 2022.

2. On a temporary, without prejudice basis, the Respondent shall pay the current ongoing support in the amount of $1,392.00 per month, in addition to the sum of $3.00 per month on account of arrears (for a total of $1,395.00 per month), commencing on April 1st, 2022.

3. In default of any periodic payment referred to in paragraph two (2) above, the Respondent shall be incarcerated for a period of three (3) days for each and every default.

4. In the event of default of any payment due herein, the Director, Family Responsibility Office shall be at liberty to bring any future motion for warrant of committal with notice to the Respondent, however, the said warrant of committal shall not take effect until after January 1, 2023.

5. Default Hearing is adjourned to September 12, 2022 to be spoken to. Manner of attendance to be confirmed by Trial Co-ordination office to the following email addresses:

(a) the Director at: frolegalservice@ontario.ca

(b) the Payor, via his solicitor of record, Mr. Sloane, at: David@sloanelaw.ca

6. No order as to costs.

J. Breithaupt Smith, J.

Date: June 28, 2022

[^1]: S.O. 1996, c. 31, as am. [^2]: 2018 ONCJ 343 [hereinafter “O’Neill”]. [^3]: O. Reg. 114/99, as am. [^4]: Fischer v. Ontario (Director, Family Responsibility Office), 2008 ONCA 825 at paragraph 23 [hereinafter Fischer]. [^5]: 2017 ONCJ 693 [hereinafter “Kumar”]. [^6]: 2021 ONCJ 133 [hereinafter “Felizardo”]. [^7]: Kumar, supra note 2 at paragraph 32. [^8]: While the list at section 41(10) could be seen as being inclusive rather than exclusive, and thus allowing other options not specifically enumerated, that is not my interpretation as the Legislature as often prefaced similar lists with the phrase “including an order,” or the word “including” where broad judicial discretion was contemplated. See for example Family Law Rules 1(7.2) and 1(8), respectively. [^9]: Fischer, supra note 4 at paragraph 20. [^10]: Certainly, if it is the intention of the Legislature to allow the Court to alter the terms of the ongoing or “subsequent” support payments as part of the Default Hearing process, then I would respectfully invite a change to section 41(10) of the Act to provide clear direction to jurists wrestling with this issue. [^11]: O’Neill, supra note 2 at paragraph 34. [^12]: O’Neill, supra note 2 at paragraph 64. [^13]: Fischer, supra note 4 at paragraph 24. [^14]: From, for example, the support recipient. [^15]: See Felizardo, supra note 3 wherein Justice Zisman conducts a detailed analysis of the Payor’s own evidence absent any contradictory evidence from the Director and draws clear conclusions as to the Payor’s credibility and the weight to be attributed to the evidence tendered. [^16]: Felizardo, supra note 3 at paragraph 75. [^17]: Ms. Janic was clairvoyant, having known Mr. Janic for many years, as of course he is now doing exactly what she had anticipated: attempting to use the statutory declaration to convince the Court that he doesn’t owe child support. [^18]: I am giving Mr. Janic the benefit of the doubt here by presuming that the language of the document was generated by the Lender. As Ms. Pasc asks, why was any discussion of support liabilities necessary? Usually the Lender is only interested in the financial liabilities of the Borrower, and so it would be unusual from the Lender’s perspective to require an individual who is not responsible for future mortgage payments (here Mr. Janic) to attest that he is not liable to make support payments. However, I have no evidence that Mr. Janic sought to make any Lender-suggested language reciprocal (i.e. to change it from Ms. Janic’s declaration that she does not owe support to a declaration by both of them that neither owes support to the another). [^19]: See Part V of By-Law 9 of the Law Society of Ontario: https://lso.ca/about-lso/legislation-rules/by-laws/by-law-9 [^20]: O’Neill, supra note 4 footnote 25 to paragraph 64. [^21]: Rule 20.2(1) (definition) of the Family Law Rules, supra note 3.