Shane Gregory Foulds

This decision concerns a default proceeding to enforce a longstanding child support order against Jason Burke, who owes over $76,000 in arrears.

The Ontario Court of Justice found that the payor failed to rebut the statutory presumption of ability to pay, despite his claims of disability and systemic discrimination.

The court detailed the extensive procedural history, the payor’s financial disclosures, and his failure to prioritize child support payments over personal expenses.

The court imposed a default order including immediate committal to jail for 90 days or until arrears are paid, with ongoing monthly payments subject to committal for missed payments, emphasizing enforcement balanced with accommodation for disability.

The Family Responsibility Office sought enforcement of substantial child and spousal support arrears totalling $509,516.09 against a self-employed dentist.

The payor's prior support orders had been based on an imputed income of $380,000 annually, but he claimed his income had declined significantly to approximately $92,400 annually.

The court found the payor had not rebutted the presumption of ability to pay and was underemployed by choice.

The court ordered immediate incarceration of 15 days or payment of $25,000 for breach of a temporary default order, and imposed a final default order requiring payment of $175,000 within 30 days (in default of which 120 days incarceration) plus ongoing monthly payments of $2,500 increasing to $3,250 (with 5-day incarceration for each default).

The respondent father moved to set aside or vary a warrant of committal issued for non-payment of child support arrears of $170,505, and a final default order.

The respondent did not attend the committal hearing on September 24, 2012, despite having notice.

The court considered whether the motion should be granted under Rule 25(19) of the Family Law Rules or Rule 19.08 of the Rules of Civil Procedure.

The court found that while the respondent failed to meet all three prongs of the traditional test for setting aside a default order, the interests of justice favoured varying the committal order to reflect time served, particularly given serious doubts about the validity of the underlying support order that was the subject of enforcement.