Court File and Parties

Court File No.: FC-22-174-E000 Date: 2023/03/28 Superior Court of Justice - Ontario

Re: The Director, Family Responsibility Office, for the benefit of Shannon Brown, Applicant And: Trevor Dubeau, Respondent

Before: Justice M. Fraser

Counsel: Victoria Legris, Counsel for the Applicant Diana Tomazin, Counsel for the Respondent

Heard: March 21, 2023

Endorsement

[1] The Applicant brings a motion asking for a Warrant of Committal for failing to comply with the terms of a Final Default hearing Order dated November 8, 2016. It seeks that the Respondent support payor, Trevor Dubeau (“Dubeau”) be committed to jail for one-hundred and eighty days or until the sum of $72,952.94 has been paid, whichever occurs sooner.

Background

[2] The recipient, Shannon Brown (“Brown”) commenced an application for child support in May 2014 (“Brown’s proceeding”).

[3] On July 21, 2014 P. Kane J. made an interim order that Dubeau pay Brown child support in the monthly amount of $621.00 based upon a finding that Dubeau’s annual income was $68,000.00.

[4] On December 4, 2015, in disposing of a motion brought by Brown, a final support order was made by P. Smith J. Dubeau did not respond to the motion and it proceeded on an uncontested basis. I note that P. Smith J. made the following findings at that time:

The Respondent has consistently failed to provide proper disclosure and has a record of disobeying previous court orders. Further he is in arrears of support of approximately $5,566.00 and, in fact has not paid any child support since the birth of his daughter. He has failed to pay his proportional share of section 7 expenses (daycare) - $411.66 per month. He has failed to pay costs.

There is no excuse for the Respondent breaching the terms of prior court orders or his failure to pay child support or his share of his daughter’s day care expenses.

[5] As a result, an order was made striking Dubeau’s pleadings in that application as they pertained to financial matters and the application was ordered to proceed to an uncontested hearing on the financial issues.

[6] On March 31, 2016, Roger J. made a final order in Brown’s application. He ordered child support, both retroactive and prospective, to be paid by Dubeau.

[7] The Family Responsibility Office commenced a proceeding to enforce the arrears owed by Dubeau and on November 8, 2016, Linhares de Sousa J. made a default order fixing Dubeau’s arrears at $2,244.00 as of November 7, 2016 and ordering the arrears to be payable in full by January 9, 2017. This was to be in addition to Dubeau’s ongoing child support obligation in the amount of $1,122.00 per month. The default order also provided that in default of any payment, Dubeau should be incarcerated for a period of 10 days for each and every default or such lesser period as may be determined by the Court in a motion for a warrant of committal.

[8] The present motion for a warrant of committal was served on Dubeau personally on July 27, 2022.

[9] This motion has then been adjourned four times since then in order to provide Dubeau the opportunity to retain counsel to respond to this proceeding as well as to bring a Motion to Change in Brown’s proceeding.

[10] Dubeau has not paid anything toward the arrears in the intervening period.

[11] Dubeau commenced a Motion to Change on February 8, 2023. He asks that the child support order be cancelled and the arrears owing to be rescinded.

[12] As of March 13, 2023, Dubeau owes $83,493.44. Dubeau has not disputed this amount as owing.

[13] In making my order today, I make the following findings:

a. Dubeau maintains that he was last employed by March Networks in Kanata, Ontario in early 2015. He was laid off from that employment at that time and he has not been employed since. Notwithstanding that it was incumbent upon him to do so, he did not initiate a Motion to Change until February 2023. It is apparent based upon the Statement of Arrears that Dubeau was not voluntarily making support payments prior to the termination of his employment with March Networks which makes me question whether his failure to pay support is wilful, rather than forced on him by his “circumstances.” In fact, it is clear that P. Smith J. expressly found this to be the case, particularly given Dubeau was refusing to provide the financial disclosure required of him.

b. Dubeau suggests that he could not find employment since. No evidence of his efforts has been provided. None. Instead, Dubeau maintains that his “cottage” burnt down in March 2016 and that he has had no alternative but to reside with their parents which is located in a rural location outside of Renfrew Ontario and that it has poor internet service and that, given his arrears, he has no driver’s license. As a result, he claims his parents have supported him and he has looked after them and the upkeep of their home. His Notice of Assessment indicate that he has had 0 income from the years 2017 onward. I do accept that he declared 0 income in those years. However, I do not accept that this was involuntary. Despite his claim that he has been unable since 2016 to find employment, nowhere in his materials is there any suggestion that he is unable to do so due to disability or lack of qualification. He has provided no evidence of his efforts. I find that he has chosen instead to provide a benefit to his parents and receive free room and board in return. In my view, it appears clear that he is purposefully underemployed.

c. Dubeau applied for and has been in receipt of Ontario Works effective January 31, 2023. No explanation has been provided as to why he apparently made no effort to apply for Ontario Works prior to this time and why this is not being paid toward his arrears when he appears to continue to live with his parents at no cost.

[14] I am not satisfied on the basis of the above that the presumption that Dubeau has the ability to pay (pursuant to s. 41(9) of the Family Responsibility & Support Arrears Enforcement Act, S.O. 1996 c. 3) has been satisfactorily rebutted by Dubeau.

[15] Indeed, Dubeau’s explanation does not, in my view, provide a credible basis upon which I could find there to be any valid reason for his failure to pay the arrears. There was nothing to substantiate that he was medically incapacitated from working or that he could not find gainful employment. He has demonstrated a complete disregard for the support obligation imposed upon him. He has made little to no effort to satisfy this obligation and I conclude his conduct has been wilful and deliberate. I conclude that incarceration in this instance as necessary to induce Dubeau’s compliance.

Disposition

[16] The motion brought by the Director of FRO for a warrant of committal is granted.

[17] Dubeau shall be incarcerated for a period of 180 days, to be served intermittently each weekend from Friday at 5:00 pm to Monday at 9:00 am, until one the following are made:

1. The outstanding default is cured;
2. Arrangements for payment agreed to by the Applicant are made; or
3. An order is made changing the terms of this order.

[18] If the parties are unable to agree on the issue of costs for this motion, the Applicant may file submissions concerning costs on or before April 10, 2023. The Respondent may file submissions concerning costs on or before April 20, 2023. The cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs. If there are no submissions received by April 20, 2023, then there shall be no order as to costs.

M. Fraser J. Date: March 28, 2023