The Family Responsibility Office v. Fagan, 2025 ONSC 892
Court File No. FC-18-2325-E004
Superior Court of Justice – Family Court
Between
The Family Responsibility Office
Applicant
and
Orrett Fagan
Respondent
Appearances
- A. Hirsh, Counsel for the Applicant
- C. O’Garr, Counsel for the Respondent
Reasons for Decision
Before: P. Roger
Heard: February 4, 2025, Ottawa, Ontario
Judgment Released: February 10, 2025
Background
The Director of the Family Responsibility Office (“F.R.O.”) brings a motion for a warrant of committal, seeking to incarcerate the Respondent, Mr. Fagan, for 110 days for failing to comply with the final default order of Justice Mackinnon, dated December 7, 2021.
That order sets the arrears owing to November 29, 2021, at $113,737.44 and orders the Respondent to continue paying $1,340.00 per month, under the final order of Justice Audet, dated June 3, 2019, with two days of incarceration for each and every missed payment. It also orders three lump sum payments to be made, and 30 days of incarceration for default of each and every of these three payments.
The Respondent seeks the dismissal of the committal motion and brought a cross-motion seeking to set aside, or to vary, the default order.
The default order enforces the order of Justice Audet of June 3, 2019, made following an uncontested trial. The parties never lived together and have one child, born in 2008. Justice Audet ordered, amongst others, the Respondent to pay child support in the amount of $1,140.00 per month, based on annual income estimated at $129,200.00. She fixed arrears for the period from November 2011 to March 2019, at $72,152.00, and also ordered the Respondent to pay $200.00 per month towards special and extraordinary expenses.
The Respondent, who is 70 years old, states that he was diagnosed with cancer in 2016, has experienced health difficulties since that time, and stopped working in 2020. He argues that the default order should be set aside or should be varied.
Legal Framework
Rule 25(19) of the Family Law Rules provides that a default order may be set aside in certain circumstances. Here, Rule 25(19)(e) is relied upon.
Setting aside a default order is a discretionary remedy. All relevant circumstances are considered to decide what is fair and just in the circumstances, including:
a) Whether the motion was brought promptly.
b) Whether there is a plausible explanation.
c) Whether the Respondent has an arguable defence.
d) The potential prejudice to both sides.
e) The effect of any order the Court might make on the overall integrity of the administration of justice.
The above are not rigid rules, but factors to be considered by the Court when deciding what is fair and just in the circumstances.
Application of the Factors
I find that the Respondent has not moved promptly. He is moving now, years after the December 7, 2021, default order only because he is now threatened with incarceration.
I find that the Respondent has a plausible explanation. It is not a strong, nor a very convincing explanation, but it is a plausible explanation which arises from the medical documents that he attached, albeit improperly before the Court as hearsay because they are not from an affidavit of the health professional who prepared the document. Nonetheless, these corroborate, to some extent, the difficulties that he describes in his affidavit, particularly as it relates to his mental health, depression, and difficulty focusing, and his evidence is properly before the Court and admissible.
I find that the Respondent has an arguable defence which relates to ongoing child support payments. Although retroactivity is very much in dispute, it is clear from the evidence that the Respondent’s income decreased significantly in recent years and that this is not reflected in the default order, which calls for ongoing child support payments based on income that is no longer applicable.
I find that both sides face prejudice. The Respondent faces jail, one of the most serious of consequences. The Recipient, through the F.R.O., has received very little child support and is owed considerable arrears, also an important form of prejudice. Although the Respondent’s prejudice is potentially more important, involving jail, and relating to his freedom, his prejudice is diminished by the fact that it arises from his own conduct of not paying ordered child support. Nonetheless, I find that this factor favours the Respondent.
The effect on the overall integrity of the administration of justice, I find, slightly favours the Recipient through the F.R.O., as it is not acceptable for the Respondent not to have paid ordered child support.
Consequently, when I consider all the evidence, I find that it slightly favours the Respondent. Moreover, at the age of 70 and no longer working, it seems unlikely that the Respondent should continue paying child support based on the income that was imputed to him by Justice Audet when he was working. At some point, the Respondent has an arguable defence that a lesser amount of child support is payable.
Remedies and Orders
The remedies available to the Court under Rule 25(19) of the Family Law Rules are broad. They include setting aside the order or part of the order; they include as well changing, varying, suspending, or correcting the order, see Berta v. Berta, 2021 ONSC 2823, para 14.
In the circumstances of this case, the Respondent has previously failed to disclose relevant required financial information. His earlier motion to change was dismissed by Justice Fraser for yet again persistent non-compliance with required disclosure.
Consequently, although the Respondent has demonstrated an arguable defence relating to a decrease in his recent income and has demonstrated the need for some recalculation of his ongoing child support obligations, it is impossible to assess amounts owing and whether his stated intention of appropriately participating in the Court process will continue once this motion is decided. Indeed, most of the evidence indicates that the Respondent has consistently tried, by all means, to avoid meeting his child support obligations.
This is therefore not an appropriate case to set aside the order of Justice Mackinnon. Too much information is missing. Similarly, although the Respondent may have demonstrated a material change in circumstances for the purposes of this motion under section 41(15) of the Family Responsibility and Support Arrears Enforcement Act, 1996, too much information is missing for me to change the order of Justice Mackinnon on a final basis.
Nonetheless, it is clear on the evidence that significant arrears are owing by the Respondent, and that his current ongoing child support obligation is less than previously ordered, possibly in the range suggested by his materials.
Disposition
Consequently, the following is ordered:
Effective today, the order of this Court made by Justice Mackinnon, dated December 7, 2021, is, until further order, suspended.
Amounts owing under the order of December 7, 2021, shall be reviewed once the contemplated motion to change has been resolved. However, if the contemplated motion to change is abandoned, discontinued, or dismissed, then the F.R.O. shall bring a motion seeking to reinstate the order of December 7, 2021, as if this order had not been made.
Pending what is stated above at paragraph 2, the Respondent shall:
- a) Within the next 90 days, pay to the F.R.O., for the benefit of the Recipient, the amount of arrears found owing by Justice Audet of $72,152.00;
- b) Until further order, on an ongoing basis, starting on March 1, 2025, the Respondent shall pay to the Applicant, for the benefit of the Recipient, monthly, on the first day of each month, the amount of $458.00, being $308.00 in regular child support, $100.00 towards additional arrears, and $50.00 towards special and extraordinary expenses;
- c) Within the next 90 days, provide to the F.R.O. some acceptable form of security, either a mortgage or some other form of security acceptable to the F.R.O. acting reasonably, securing $35,000.00 of potential additional arrears.
In default of complying with any of (a), (b), and/or (c) above, the Respondent shall be incarcerated for 60 days for failing to comply with (a), 30 additional days for failing to comply with (c), and one additional day for each and every failure to comply with (b).
A date may be scheduled now for this matter to return before me for one hour at a date to be after May 19, 2025, on special service to the Respondent, or acknowledgement of service by his lawyer, for a warrant of committal, as per the above, in the event of non-compliance with any of (a), (b), and/or (c) above.
The above gives additional time to the Respondent to do what is required to avoid incarceration and avoid the prejudice that might otherwise follow. As well, it addresses the Recipient’s prejudice of not having regularly received child support for a very long time. If the order is complied with, parties will proceed with the motion to change and it should resolve all outstanding issues. If the order is not complied with, then the parties will return before me towards the end of May, or early June, to seek a warrant of committal. As well, if the parties require any clarification of this order, or assistance in its implementation, they may return before me by asking for an appointment with the Family Motion or Family Trial Coordinator.
Certificate of Transcript
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I, Lori Tone, certify that this document is a true and accurate transcript of the recording of FRO v Fagan in the Superior Court of Justice, Family, held at 161 Elgin Street, Ottawa, ON, taken from Recording 0411_CR31_20250204_085809_ _10_ROGERP.dcr, which has been certified in Form 1.
February 10, 2025
(Electronic signature of authorized person)
6757607581 (Authorized court transcriptionist’s identification number – if applicable)
Ontario, Canada.
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.