Court File and Parties

COURT FILE NO.: FS-19-10669 DATE: 2022-12-28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SARRA ARAR, Applicant AND: MOHAMED ARAR, Respondent

BEFORE: M.D. Faieta J.

COUNSEL: Mercedes Ibghi, for the Applicant Hugh M. Evans, for the Respondent Dianne Gillies, for the Director, Family Responsibility Office

HEARD: December 23, 2022

ENDORSEMENT

[1] The Respondent brings this motion for a refraining order pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, Chapter 31 (“the FRSAE"), that the Director of the Family Responsibility Office (“the Director”) be enjoined from:

a) Enforcing the support order granted on July 16, 2021; and,

b) Requesting that the Federal Government to suspend the Respondent’s passport.

[2] At the hearing of this motion, counsel for the Respondent stated that the relief sought on this motion would be limited to enjoining the Director from applying for a suspension of the Respondent’s passport.

BACKGROUND

[3] On July 16, 2021, a consent Order requiring the Respondent to pay child support in the amount of $1,467.00 in respect of their two children based on his annual income in 2020 of $99,675.00 (“the 2021 Order”).

[4] The Respondent was permanently laid off by his employer, an engineering company, on October 28, 2021 after four years of employment. His Record of Employment states that the Respondent worked as a designer and that his employment was terminated due to a “shortage of work”. The Respondent received $16,000.00 as severance pay and $8,000.00 as pay in lieu of notice. The Respondent received Employment Insurance benefits from November 7, 2021, until September 17, 2022. During that period, he received net EI benefits of $526 per week. The Respondent states that he has no source of income and subsists on loans and gifts from his family.

[5] The Respondent states that he has diligently searched for employment since being laid off in October 2021 but has been unable to find work as a structural designer. Over the last fourteen months he has applied for 122 similar positions without success.

[6] A few weeks after his EI benefits were exhausted, the Respondent filed a motion to change the 2021 Order. Amongst other things, the Respondent seeks an order that adjust the child support paid to reflect his 2022 income of $25,248, an order to adjust his share of the payment of section 7 expenses and an order that allows him to travel outside of Canada, including to Algeria which is the parties’ country of origin, with his 12 year old son.

[7] A letter the Director dated November 21, 2022 states that, as of that date, the Respondent owes $13,957.00 in child support to the Applicant and that, as a result, the Director intends to suspend his federal licences including his passport. The Director states that it intends to ask the federal government to suspend and refuse to renew his passport and any other federal licences that he may have and to refuse to provide him with any new licences. The letter states that the director would direct the federal government to suspend his passport and all other federal licences if he did not pay his support arrears or enter into a payment agreement with the Director by December 30, 2022. The letter does not state that obtaining a refraining order is a third option.

[8] On December 21, 2022, the Respondent served and filed this Notice of Motion. The Respondent states that he wishes to travel to Algeria as soon as possible because his mother is ill. He fears that he will not be able to return to Canada the Directorm this trip if his Canadian passport is suspended.

ANALYSIS

[9] The FRSAE imposes a duty on the Director to enforce support orders. There are various enforcement tools available to the Director under the FRSAE. Amongst other things, the Director may direct the Registrar of Motor Vehicles to suspend a defaulting payor’s driver’s licence. After receiving notice from the Director that their driver’s licence may be suspended, a payor may bring a motion, under s. 35(1) of the FRSAE, for an order that the Director refrain from directing the suspension of the payor’s driver’s licence on terms that the court considers just. To obtain a refraining order, the payor must demonstrate: (1) a prima facie case for variation of the support order; and (2) “clean hands”: Yip v. Yip, 1988 CanLII 4472 (ON SC), [1988] O.J. No. 2784 (Ont. H.C.),

[10] The Director also has other enforcement remedies under federal legislation. Part II of the Family Orders and Agreements Enforcement Assistance Act, R.S.C., 1985, c. 4 (2nd Supp.) (“the FOAEA”) provides:

(1) The purpose of this Part is to help provincial enforcement services enforce support orders by providing for the denial of certain licences to debtors who are in persistent arrears: s. 65.

(2) If a debtor is in persistent arrears, a provincial enforcement service may apply to the Minister, on notice to the debtor, requesting that no new schedule licences, including passports, be issued to the debtor, that all schedule licences held by the debtor be suspended; and that schedule licences held by the debtor not be renewed: ss. 67(1), (3).

(3) The Director’s application to the Minister must include a statement from a provincial officer that the debtor has been notified that “… a licence denial application will not be made if the debtor enters into a payment plan that is acceptable to the provincial enforcement service or satisfies the provincial enforcement service that the debtor is unable to pay the amount in arrears and that the making of the application is not reasonable in the circumstances”: s. 67(3)(c)(iv).

(4) If an appropriate Minister determines that a debtor is the holder of a schedule licence, then that Minister shall suspend the scheduled licence and refuse to renew it. Similarly, a Minister shall refuse to issue a schedule licence to the debtor: ss. 69(2), 70.

(5) No appeal lies the from any action taken under this Part: s. 71.

[11] Section 71 of the FOAEA has been narrowly interpreted with the result that a payor may make a motion for a refraining order requiring the Director to withdraw any application for the denial, renewal or suspension of a federal licence: McLarty v. Ontario (Family Responsibility Office), (2001), 2001 CanLII 24029 (ON CA), 53 O.R. (3d) 161 (C.A.), para. 28. However, in order to obtain an order that prevents the Director from making an application under section 67 of the FOAEA, a defaulting payor must, in accordance with s.67(3)(c)(iv), show that it has either: 1) entered into a payment plan acceptable to the Director; or, (2) it has satisfied the Director that it is unable to pay the arrears and that the making of the application is unreasonable in the circumstances: McLarty, para. 29. Accordingly, the court’s discretion to interfere with the Director’s decision to make an application for the suspension of a passport is very limited. As McDermot J. stated in Ryckman v Camick, 2020 ONSC 5429, at para. 30:

In other words, once the notice was served, the court only had discretion to make an order if the support payor complied with the FOAEA and entered into an acceptable payment plan or satisfied the Director that he was unable to pay the arrears and that the licence suspension was unreasonable.

[12] In this case, the Respondent father has not entered a payment plan with the Director nor is the Director satisfied that the Respondent is unable to pay the arrears. Accordingly, the Respondent’s motion must be dismissed.

[13] The Director highlights several peculiarities in the Respondent’s evidence. The Director notes that the Respondent expenses are twice as much as his income. The Respondent’s undated Financial Statement states his monthly income is $2,140.00 (which ended with the cessation of his EI benefits in October 2021) and that his monthly expenses are $4,335.00. This deficit is questionable given that the Respondent also reports no debt even though he reports to receiving gifts and loans from his family. The Director points to the Respondent’s choice to pay for discretionary expenses rather than child support. His discretionary expenses include: 1) car loans, car insurance and fuel expenses that total $640.00 per month; 2) entertainment - $100.00 per month; 3) travel - $150 per month. In addition, the Director questions how the Respondent can afford to pay for airfare to travel to Algeria for himself and his son.

[14] The Director submits that the Respondent’s unemployment for the last 15 months is one of choice. The evidence before me shows that the Respondent has applied for over 120 jobs in comparable positions. The Director submits that the Respondent should have sought and obtained any job given his children’s need for support.

[15] I agree with the Director’s views. Even if this Court had the authority to grant a refraining order in respect of the Director’s application to suspend the Respondent’s passport based on the principles outlined in Yip v Yip, supra, I would not have done so as I accept the Director’s submission that the Respondent has not come to Court with clean hands.

ORDER

[16] Order to go as follows:

(1) The Respondent’s motion is dismissed.

(2) The Director and the Applicant shall deliver their costs submissions by January 9, 2023. The Respondent shall deliver his responding costs submissions by January 16, 2023. The Director and the Applicant shall deliver their reply costs submissions by January 20, 2023. Each submission shall be no more than three pages excluding offers to settle and an outline of costs.

Mr. Justice M.D. Faieta

Date: December 28, 2022