Court File and Parties

COURT FILE NO.: FC325/17-E0 DATE: 2023/02/10 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: The Director, Family Responsibility Office, for the benefit of Margaret Chikwanda, Recipient AND: Dan Bell, Payor AND: Law Office of Little, Garnishee

BEFORE: HENDERSON J.

COUNSEL: Marie Tukara for the Director, Family Responsibility Office Jennesa Plaine, for the Payor

HEARD: February 8, 2023

Endorsement

[1] The Director seeks an order permitting the release of $38,203.40 towards child support arrears owed by the respondent. The funds were obtained through garnishment proceedings against an inheritance to which the respondent is otherwise entitled.

[2] The respondent payor acknowledges that he owes child support arrears which, according to the Director’s Statement, are $63,247.89 as of February 1, 2023. Nevertheless, he asks that I exercise my equitable jurisdiction in two areas: (1) to reduce the amount of the inheritance garnishment to $25,000, and (2) to reduce the amount of exigible income to pay any outstanding balance by proposing a re-payment plan.

[3] As the second part was not put before the court by way of formal motion, I will dismiss the request without prejudice to it being brought back on notice in the event a voluntary payment plan cannot be achieved.

[4] Rule 29 of the Family Law Rules, O. Reg 114/99, governs garnishment proceedings. Rule 29(19) sets out remedies the court may consider at a garnishment hearing. These include dismissing the dispute or an order changing how much may be being garnished on account of a non-periodic payment.

[5] The defenses to a garnishment are limited. In Ontario (Director of Support v. Custody Enforcement) v. Galea (1990), 50 C.P.C (2d) 85 (Ont. Prov. Div), the court identified possible grounds of a dispute to a garnishment which included:

1. That, at the time the notice of garnishment was served the payor did not owe money to the creditor or owed a lesser amount than that claimed by the creditor.
2. That, although a debt was owed, the subject on varies were not attachable or garnishable on account of a legal exception.
3. That the garnishee has a right of setoff against the payor.

(See Wall v. Wall, 2013 O.J. No. 938 to similar effect)

[6] While there maybe limited defenses to a garnishment, the jurisprudence supports the view that it is nevertheless an equitable remedy. The court may in appropriate circumstances exercise its discretion to enforce a garnishment (see for example, Campbell v. Wentzell, 2018 ONSC 3041, at para. 16 and the cases cited therein).

[7] There have been several court orders concerning support for the respondent’s two children:

• Brophy J. July 6, 2010 – temporary – child support of $568 per month on an income of $38,000 per year and $100 per month towards undetermined child support arrears
• Caspar J. August 16, 2013 – final – child support of $650 per month on an income of $44,200
• Leitch J. August 29, 2017 – child support varied to $375 per month on an income of $24,800
• Raikes J. August 6, 2020 – on consent, child support varied to $942 per month on an income of $61,807 commencing January 1, 2018 and to $1010 per month on an income of $66,272.68 commencing January 1, 2019.

[8] The respondent asks that I exercise my discretion in his favour for a couple of reasons. He says he has no assets of any significance and lives paycheque to paycheque. He contends he never ignored his obligations and when times were tough he paid what he could. He could not afford a lawyer to have his payments reduced. While he worked hard to pay what was ordered, his arrears only increased significantly when he was, in his words, “reassessed”, that is when the court ordered retroactive support.

[9] The jurisprudence and statute promote the following principles:

1. Child support is the right of the child.
2. Parents have an obligation to support their children.
3. Child support is to be paid in accordance with the provisions of the Child Support Guidelines, O. Reg. 391/97.
4. The payor parent bears the responsibility to disclose their annual income and pay the appropriate support based on that income.

[10] I find the respondent’s argument that he paid as ordered but that it was the “reassessments” that put him in the hole to be disingenuous. These “reassessments” were court orders that demonstrated that the respondent was not paying the support he should have. I see no difference between being ordered to pay an amount and not pay it, on the one hand, and not pay what he should have and then be hit with a retroactive order, on the other. The equities fail either way.

[11] I also note that prior to the order of Raikes, J. the respondent owed $42,142.89 prior to the retroactive adjustment from that order and that at the time of that order did nothing to vary the amount of arrears owing.

[12] Even now he is not paying the child support he should be. Since the order of Raikes J. the respondent’s income has increased to $74,377 in 2021 and over $76,000 in 2022 without an increase in child support.

[13] The facts are that the debt is owed, that the recipient has borne the cost of raising the children without full support and, most importantly, that the children have been deprived of the benefit of proper support from the respondent. They would no doubt prefer to receive what is owed now and not spread over the next 10 to 15 years.

[14] I therefore dismiss the respondent’s dispute and order that the sum of $38,203.40 be released to the recipient. If costs are sought and cannot be agreed, the Family Responsibility Office may file written submissions within 15 days with the respondent having 15 days to respond. Written submissions shall not exceed five pages, not including offers to settle or Bill of Costs.

“Justice Paul J. Henderson” Justice Paul J. Henderson Date: February 10, 2023