Court File and Parties

Court File No.: FC-22-00058320-0000 Date: 2025-10-31 Ontario Superior Court of Justice

Between: Tresha Sookhoo, Applicant – and – Chait Narine Sookhoo, Respondent

Counsel:

• Arika Sohail, Counsel for the Applicant
• Respondent is Self-Represented
• M. Llerena from the Family Responsibility Office was present on October 29, 2025 as a friend of the court

Heard: October 15 and 29, 2025

Before: The Honourable Justice J. Breithaupt Smith

Reasons on Motion

October 15, 2025

[1] Motion Overview

The Applicant brings a motion to release the Respondent's share of the net proceeds of sale of the former matrimonial home in two tranches, firstly to her to cover arrears of child support; and secondly to the Family Responsibility Office to be held in trust for future child support.

[2] Undisputed Facts

The undisputed facts are as follows:

a. The parties were married.

b. They have three children: Diya (16); Nisha (14); and Max (8).

c. The Application was commenced on December 1, 2022 and served substitutionally in accordance with the Order of Justice Gordon dated April 19, 2023.

d. By mid-2023, the Respondent was having only "sporadic" contact with the children.

e. The Respondent has a history of alcohol abuse and family violence, including toxic behaviours aimed at the children.

f. The Respondent has historically bounced from job to job. He has no real assets of which the Applicant is aware, other than his share in the value of the former matrimonial home.

g. On September 19, 2023, Justice Piccoli authorized that the sale of the matrimonial home would proceed without the Respondent's participation, with the proceeds of sale to be held in trust.

h. On January 18, 2024, I made an order at an uncontested trial imputing income to the Respondent of $52,045.70 and finding that he owed child support in the amount of $1,020 monthly for the three children.

i. On February 20, 2024, I made an order divorcing the parties.

j. The Respondent has been non-responsive to any aspect of this litigation and, at this point, has effectively disappeared.

k. The Applicant has sworn and submitted to the Family Responsibility Office a Statement of Arrears fixing the amount of child support now owed to her as $22,762.72 inclusive of interest as of July 31, 2025.

l. No payments for August, September or October 2025 have been forthcoming, and thus an additional $3,060 is owed.

m. There are approximately $79,000 remaining in trust with the real estate solicitor, being the balance of the Respondent's share of the net proceeds of sale.

n. The real estate solicitor has advised the Applicant that he will soon be obligated to send the said funds to the Law Society of Ontario as "unclaimed trust funds."

o. Materials for this motion were served upon the Respondent by email on August 25, 2025 and nothing has been heard from him.

p. No payment has been made by the Respondent toward child support and thus he is clearly out of compliance with the support order.

[3] Legal Framework for Enforcement

Rule 1(7.1) of the Family Law Rules authorizes the court to make orders addressing non-compliance with existing orders "at any time during a case." Rule 1(8) empowers the court to make "any order it considers necessary for a just determination of the matter." In Children's Aid Society of Toronto v. R.I., 2024 ONCA 93, the Court of Appeal confirmed, at paragraphs 24 through 27, that:

a. The making of a Final Order does not render the matter functus vis-à-vis enforcement.

b. Rule 2(1) defines "case" as inclusive of "enforcements."

c. It is unclear what form an alternative enforcement proceeding would take, if it were not to be brought forward by Notice of Motion.

d. To require a secondary enforcement proceeding, rather than to permit the hearing of such issues on motion, would be entirely inconsistent with one of the fundamental principles of our court system, which is to avoid a multiplicity of proceedings as affirmed in section 138 of the Courts of Justice Act.

e. An enforcement order can be obtained on motion pursuant to Rule 1(8).

[4] Release of Funds for Arrears

Thus, it is clear that an order can be made on motion to release sufficient trust funds to satisfy the existing terms. In that regard, the sums of $3,060, $22,762.72, and costs of this motion as set out below will be released directly to the Applicant. The arrears of child support will be fixed at $NIL as of October 31, 2025.

[5] Lump-Sum Child Support – Statutory Framework

But what of the balance of the funds? The Applicant's motion asks that they be transferred to the Director of the Family Responsibility Office to be held in trust as a credit against ongoing (future) child support. Section 34(1)(b) of the Family Law Act provides (my emphasis):

34(1) in an application under section 33, the court may make an interim or final order,

(b) requiring that a lump sum be paid or held in trust;

[6] Notice Requirements for Lump-Sum Support

Section 34(1) of the Family Law Act contemplates an application, presumably to ensure that all parties have clear notice of their potential financial exposure. In reviewing the original Application in this matter, there was no request for lump-sum child support, thus there was no notice to the Respondent that the entirety of his net sale proceeds could be redirected to the Applicant. Further, that Application has been addressed on a final basis, yielding the order for periodic support for three children.

[7] Applicant's Alternative Requests

Here, by way of a motion, the Applicant is asking either: (a) that the excess funds be held in trust by the Family Responsibility Office pending future enforcement, as a credit to the Respondent; or (b) that the court define the amount for which the Respondent is potentially liable on the basis of the income imputed to him and on the understanding that child support will cease as each of the parties' three children reaches the age of eighteen.

[8] Adjournment for Further Submissions

If the former, it may well be that the Family Responsibility Office accepts trust funds being held as a credit against future obligations under an active and ongoing support order. Neither evidence nor any precedent case was provided on this point. As I am concerned about prejudice to Mother, I will not dismiss that portion of the request for relief, but have adjourned it for further submissions on October 29, 2025 at 10:00 a.m. I note that the question still remains whether I can grant the relief sought under section 34(1)(b) on a motion, rather than on an application, but evidence from the Family Responsibility Office or a precedent case will hopefully clear up this point.

[9] Lump-Sum Support Analysis

If the latter, then the court is being asked to define lump-sum child support. In Segat v. Segat, 2015 ONCA 16, at paragraph 6, the Court of Appeal upheld a trial judge's decision to order lump-sum child support in a case where there was: "non payment of child support, the Respondent's refusal to disclose his net worth, the restraining order against him respecting the appellant and the children, and the fact that he [had] disappeared." This case is similar in many ways to the facts in Segat, however the critical distinction is that, in Segat, the request was addressed fully at the trial. (See also Dagg v. Cameron Estate, 2017 ONCA 366 at paragraphs 83–87, where the Court of Appeal confirmed that sufficient life insurance proceeds were to be used to pay existing support obligations at the time of the payor's death, with any overage to be payable to a second set of dependants who claimed under the Succession Law Reform Act.)

[10] Procedural Requirements for Lump-Sum Support

The relief sought by the Applicant regarding lump-sum child support going forward must be pleaded either in a Motion to Change the existing Final Order (to finalize an amount of anticipated future support). This would be an originating process and would require personal service (or an alternative thereto), ensuring that the Respondent would have fulsome notice of the plans for his asset.

[11] Dismissal of Lump-Sum Request

Thus, the request to define future child support as a lump-sum obligation payable now must be dismissed. It is hoped that the Applicant's counsel will move swiftly to initiate the process afresh and that, in the interim, the real estate solicitor may be able to liaise with the Law Society of Ontario to keep the funds available in some manner if and when the lump-sum child support amount is determined.

[12] Two Orders to Issue

As noted, we will be hearing additional submissions regarding the potential for the balance of the funds beyond those which are needed to satisfy the current obligation to be transferred in trust to the Family Responsibility Office. Therefore, two orders will issue.

[13] Final Order – October 15, 2025

1. The sum of $25,822.72 from the funds held in trust on behalf of the Respondent, Chait Narine Sookhoo, by Johnson, McMaster Professional Corporation is to be paid over and released to the Applicant, Tresha Sookhoo.

2. Effective October 31, 2025, the arrears of child support payable by the Respondent, Chait Narine Sookhoo, to the Applicant, Tresha Sookhoo, are fixed at $NIL.

3. The request for an order fixing lump-sum child support is dismissed, without prejudice to its being brought back on Application or Motion to Change.

4. Approval of the draft order by self-represented parties is waived.

[14] Temporary Order – October 15, 2025

1. All other relief sought in the Notice of Motion dated August 25, 2025 is adjourned for continuation of this hearing on Wednesday, October 29, 2025 at 10:00 a.m. Justice Breithaupt Smith is seized.

October 29, 2025

[15] Summary of October 15 Proceedings

On October 15, 2025, this motion was initially before the Court with the following being accomplished:

a. Findings of undisputed fact;

b. Calculation of then-outstanding arrears of child support;

c. Order for payment of the amount ($25,822.72) from the Respondent's share of the net proceeds of sale of the former matrimonial home;

d. Dismissal of the request for an order fixing lump-sum child support on motion, without prejudice to the issue being raised on Application or Motion to Change.

[16] Remaining Issues

The only issue remaining for determination today is whether an order can be made on a motion for the balance of Mr. Sookhoo's share of the net proceeds of sale to be paid in trust to the Director of the Family Responsibility Office (the "FRO") as an advance to be drawn down against ongoing child support. There are two questions raised: (1) Does the FRO accept this sort of arrangement? (2) If so, can such a request be granted on motion following the conclusion of the original proceeding, or need a fresh Application be brought?

[17] FRO Evidence and Proposed Language

Thankfully, Ms. Llerena was present from the FRO as a friend of the court today. She confirmed that the FRO could hold funds in trust to provide a source for ongoing support payments if the court ordered to do so. She suggested the following language (to which I have added slightly):

The Director is to hold onto the sum of $XX, to be used firstly for the payment of any outstanding arrears and thereafter to be disbursed each month in payment of the ongoing child support of $1,020 monthly, payable by the Respondent to the Applicant pursuant to the Final Order of Justice Breithaupt Smith dated January 18, 2024 until depleted.

[18] Statutory Basis – Section 34(1)(b)

Ms. Sookhoo's relief is pleaded under Section 34(1)(b) of the Family Law Act which provides (my emphasis):

34(1) In an application under section 33, the court may make an interim or final order,

(b) requiring that a lump sum be paid or held in trust;

[19] Application vs. Motion – Cunningham Analysis

Although I was not made aware of any prior case directly addressing this point, it had seemed to me that the reason behind an Application, rather than a motion, was "to ensure that all parties have clear notice of their potential financial exposure." Ms. Llerena did not have any experience with this issue, as her scope tends to be focused on the operative legislation for the FRO, rather than the Family Law Act generally. I was initially referred to the case of Cunningham v. Montgomery, 2010 ONSC 1817 in which the presiding judge determined that a request for a vesting order sought under section 34(1) of the Family Law Act could not be granted for support obtained under the Divorce Act (at paragraph 16). This is the exact situation here, as Ms. Sookhoo's Application sought child support only pursuant to the Divorce Act.

[20] Hesitation Regarding Motion Procedure

Here, Mr. Sookhoo seems to have disappeared, and the real estate solicitor is concerned that the trust funds should shortly be sent to the Law Society. There is no question that the children will continue to qualify for support, which will presumably be payable to Ms. Sookhoo as their sole caregiver, for several years. We may, however, find ourselves in the unenviable situation oft-bemoaned by law professors in that "bad facts make bad law." I was thus hesitant to make an order on motion under section 34(1) of the Family Law Act when an application is specifically contemplated.

[21] Katz v. Katz – Broad Discretionary Powers

Happily, the Court of Appeal expanded the frame of reference in Katz v. Katz, 2014 ONCA 606. In that case, the question, originally raised on motion, was whether a payor could be compelled to obtain life insurance to secure support under the Divorce Act in the absence of provisions equivalent to section 34(1) of the Family Law Act. Justice Simmons for the unanimous court, wrote:

[71] The situation under the Divorce Act is somewhat different. There is no provision similar to s. 34(1) of the Family Law Act listing the specific powers of the court in an application for support. Rather, the court is given broad discretion to impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just: ss. 15.1(4) (child support), 15.2(3) (spousal support). It is generally accepted that as part of its discretionary power under these sections, a court may impose terms aimed at securing payment of a support order: see Trinidad v. Trinidad (2007), 47 R.F.L. (6th) 128 (Ont. S.C.), at para. 97; Jardine-Vissers v. Vissers, 2011 NSSC 195, 303 N.S.R. (2d) 200, at para. 44. With respect to a child support order made under the Divorce Act, s. 12 of the Federal Child Support Guidelines gives a court express authority to order a spouse to supply security.

[22] Section 15.1(4) of the Divorce Act

Section 15.1(4) reads:

The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

[23] Application of Katz Principles

Justice Simmons and the Court of Appeal concluded that life insurance as an enforcement mechanism for support was available under section 15.1(4) as a term "aimed at securing payment of a support order." Similarly, I conclude that it is open to this court to make an order compelling the transfer of the trust funds to the FRO to provide an account against which support can be drawn as payments become due. This is a mechanism for securing payment of the support order and avoids the scenario where readily-available funds are denied to court-ordered recipient children.

[24] Corrected Financial Figures

I pause here to note that the figure provided by Ms. Sohail on October 15, 2025 was not correct. Ms. Llerena provided the exact current amount of arrears owing, namely $20,462.46, based on the FRO's records (which include payments that have been obtained through diversion, likely from employment income). Consequently, paragraphs 1 and 2 of my previous Final Order of October 15 (which has not yet been taken out) are rescinded. The correct figures are:

• Funds standing in real estate lawyer's trust account = $79,037.10
• Arrears of child support owing as of today = $20,462.46
• Difference = $58,574.64

[25] Costs

This leaves Ms. Sookhoo's costs of this portion of the proceeding. In the original notice of motion, the relief sought reads: "An order for costs if the motion is opposed." Thus, the Respondent does not have notice of the issue of costs as being live, as he has not opposed the motion. In submissions, Ms. Sohail does not seek costs today.

[26] Final Order – October 29, 2025

1. Paragraphs 1 and 2 of the Final Order of Justice Breithaupt Smith dated October 15, 2025 are rescinded.

2. Arrears of child support payable by the Respondent, Chait Narine Sookhoo, to the Applicant, Tresha Sookhoo, are fixed at $20,462.46 as of today's date.

3. The sum of $20,462.46 from the funds held in trust on behalf of the Respondent, Chait Narine Sookhoo, by Johnson, McMaster Professional Corporation is to be paid over and released to the Applicant, Tresha Sookhoo.

4. The sum of $58,574.64, or such other amount as remains in trust on behalf of the Respondent, Chait Narine Sookhoo, is to be paid over and released to the Director of the Family Responsibility Office by Johnson, McMaster Professional Corporation.

5. The Director is to hold onto the sum of $58,574.64, or such other amount as is received from Johnson, McMaster Professional Corporation, to be used for the payment of any outstanding amounts then-owing and thereafter to be disbursed each month in payment of the ongoing child support of $1,020 monthly, payable by the Respondent to the Applicant pursuant to the Final Order of Justice Breithaupt Smith dated January 18, 2024 until depleted.

6. No order as to costs.

7. Approval of the draft order by self-represented parties is waived.

J. Breithaupt Smith J.

Released: October 31, 2025