The Director, the Family Responsibility Office for the benefit of Debra Mariani Applicant — v. —, 2018 ONCJ 506

ONTARIO COURT OF JUSTICE CITATION: Ontario (Director, Family Responsibility Office) v.

Mariani , 2018 ONCJ 506 DATE: June 4, 2018 COURT FILE No.: D92023/16 BETWEEN: The Director, the Family Responsibility Office for the benefit of Debra Mariani Applicant — AND — Fabrizio Mariani Respondent Before Justice Roselyn Zisman Heard on May 29, 2018 Reasons for Judgment released on June 4, 2018 Carolyn Brett................................................................................... counsel for the applicant Fabrizio Mariani.......................................................................................... on his own behalf Zisman, J.: 1.

Introduction [ 1 ] The Director, the Family Responsibility Office (“the Director or FRO”) commenced a default hearing originally returnable before the court on February 21, 2017 with respect to the Respondent/payor’s failure to pay various support orders. [ 2 ] After 9 attendances the motion was finally heard on May 29, 2018. A Statement of Arrears was filed by FRO.

The total amount of arrears claimed to be owing as of May 26, 2018 is $307,372.74 consisting of arrears of support of $271,224.18, unpaid court costs of $33,732.72, interest of $15.84 and administrative fees of $2,400. [ 3 ] The Director seeks an order for the ongoing spousal support of $1,457.38 and on account of arrears $1,542.62 for a total of $3,000 per month and a further lump sum payment of $90,000 by September 3, 2018 and the balance of the outstanding arrears to be paid by June 1, 2019.

For any non-payment the Director seeks a jail term. [ 4 ] The Respondent claims that he does not have the ability to comply with the existing orders or pay the outstanding arrears. He disputes the factual findings made by Justice Kaufman in the trial decision dated August 17, 2012 [1] and submits that he intends to obtain leave to re-open his appeal. [ 5 ] He also disputes the factual findings made by Justice McGee in her decision dated May 29, 2015 [2] on a motion to set aside a committal order.

He further submits that he was up to date on his support payments until Justices Kaufman made his order retroactive to September 26, 2006. He also submits that the Statement of Arrears filed by the Director is wrong as 50% of the money claimed is interest and that for a portion of the time he was incarcerated and he should not be required to pay any support for that time. [ 6 ] At the outset of the hearing, the Respondent requested an adjournment as he was in the process of amending his Motion to

Change that had been filed in the Superior Court of Justice. He submitted that he filed a 14B in that court for an order for disclosure from the recipient and would be obtaining a court date in the next few days. [ 7 ] The request for an adjournment was denied due to the length of time this default hearing had been before the court waiting for the Respondent to commence and resolve his Motion to Change. 2. Background and

summary of court proceedings [ 8 ] The parties were married on September 2, 1989 and separated on September 26, 2006 and were divorced on July 2, 2008. [ 9 ] There are two children of the marriage, Michael who is now 26 and Nicolette who is now 24 years old. [ 10 ] The parties have been in extensive litigation since November 2006. [ 11 ] The Director is enforcing arrears pursuant to 6 orders that in

summary are as follows: (

a) Temporary order of Justice Rogers dated July 11, 2007: Respondent to pay child support of $733 per month based on an income of $48,672 and costs of $1,750 to be paid out of equalization payment; (

b) Temporary order of Justice Perkins dated June 2, 2008: continues order of July 11,2007; (

c) Temporary order of Justice Nelson dated April 7, 2010: Respondent to pay costs of $8,000 with respect to prior costs orders of May 8, 2009 and costs of two motions before Justice Nelson and $10,000 with respect to partial arrears of child support owing pre-May 2009; (

d) Final order of Justice Kaufman dated August 17, 2012: after an 8 day trial, Respondent ordered to pay child support, based on a grossed up income of $94,309, $983 per month from September 26, 2006 to December 31, 2009 and $1,369 per month from January 1, 2010. Respondent also ordered to pay spousal support of $1,253 from September 26, 2006 to December 31, 2009 and thereafter $1,369 per month to be indexed. The Respondent to be given credit for prior payments pursuant to the temporary order; (

e) Final order of Justice Kaufman dated May 21, 2013: Respondent ordered to pay costs on a full indemnity basis of $46,046.74 of which $32,232.72 was to be enforced by FRO as a support order; and (

f) Order of Justice MacFarland of the Ontario Court of Appeal dated October 10, 2013: dismissed Respondent’s motion to set aside a notice of dismissal and dismissed his motion to extend the time to perfect his appeal.

The Respondent was ordered to pay costs of $1,500 to be enforced by FRO. [ 12 ] Child support terminated on April 1, 2015 however, spousal support has continued to accrue at the rate now of $1,457.38 per month as the amount of spousal support is cost of living indexed (“COLA”) annually. [ 13 ] The Respondent received notice that his appeal of the Order of Justice Kaufman was administratively dismissed on January 22, 2018. [3] It appears that the cost order of $32,232.72 was not appealed and it cannot be varied on any Motion to Change. [ 14 ] With respect to the default proceedings, on the first appearance on February 21, 2017 the Respondent consented to a temporary order that he commence a Motion to Change and provide extensive disclosure including his tax returns from 2012 to 2016, proof of any employment insurance or workers’ compensation, copies of recent pay stubs, copies of all bank account statements since 2012, copy of any loan agreements, list of all sources of credit and any other materials that the Respondent intends to rely upon on the default hearing. [ 15 ] On April 21, 2017 [4] the Respondent advised that his Motion to Change had been commenced with a first return date in May.

A further disclosure order was made that required the Respondent to provide a list of any properties held from 2012 to the present, copy of any bill of sales with respect to property purchased or sold since 2012 and an affidavit setting out the status of the Respondent’s RRSPs and pensions he has been living off since 2010 and setting out ownership of the “vintage vehicles” referred to the trial proceedings. [ 16 ] On June 30, 2017 the case was again before me.

The Respondent advised that he attended court on his Motion to Change on May 25, 2017 before the Dispute Resolution Officer (“DRO”) but as he had not served the assignee, the York Region, motion needed to be adjourned. On a temporary basis, the Respondent was ordered to pay the ongoing spousal support of $1,440.10 per month as of August 1, 2017 or in default 5 days in jail. [ 17 ] On the next return date of September 29, 2017, the Respondent advised that a case conference had been scheduled on the Motion to Change for November 2, 2017.

The Respondent was mostly in compliance with the temporary default order but as a result of COLA the amount of spousal support was now $1,457.38. The Respondent provided some disclosure and his financial statement to FRO. He was permitted to file his financial statement with the court. FRO counsel was agreeable to adjourning the hearing to monitor the Motion to Change. [ 18 ] On the next court attendance of December 8, 2017, the Respondent advised that a new date for the attendance before the DRO was scheduled for December 12, 2017 as the prior DRO had a conflict.

The Respondent remained in compliance with the temporary default order. [ 19 ] On March 2, 2018 FRO counsel was granted leave to file an updating affidavit of Sharon Charlery, an enforcement officer with FRO. Attached to Ms Charlery’s affidavit was a copy of the endorsement of the DRO dated February 1, 2018 that stated that this was the third DRO attendance and the Respondent who was the moving party had failed to attend that day. The support recipient was in attendance and wished to move the matter along.

The endorsement states that, “Either party is at liberty to bring this matter before a Judge either on a motion or further case conference on notice pursuant to the Family Law Rules. York Region to be served with the Notice of Return of motion or case conference.” The motion was adjourned sine die.

[ 20 ] Ms Charlery also deposed that she had received information from the support recipient that the Respondent had sold his cottage on Georgina Island for $180,000 and the sale was scheduled to close on February 28, 2018. Attached to her affidavit is confirmation of the sale price.

As the property is located on reserve land, the Director was unable to file a charge against the property and the writ filed did not result in any collection of funds. [ 21 ] Also appended to the affidavit of Ms Charlery was a copy of an email sent by Carolyn Crate, the Respondent’s real estate lawyer, to the support recipient’s counsel confirming the sale and closing date of February 28, 2018.

Counsel was requesting a notarial copy of the final order of Justice Kaufman that revoked the temporary non-dissipating order that prevented the Respondent from selling the property. [ 22 ] As a result of this new information, the Respondent was ordered to obtain from his real estate counsel a letter confirming that the property sold and what funds the Respondent would be entitled to and if the property was not sold, what were the impediments to the sale and if there were prospective purchasers.

March 28, 2018 was set for the default to proceed peremptorily to the Respondent and the Respondent was required to serve and file an affidavit of any other facts he would be relying on at the hearing. [ 23 ] At the next attendance of March 28, 2018, the Respondent served counsel for FRO with an affidavit however, the disclosure ordered at the previous attendance was not provided. Counsel for FRO had issued a garnishment to the Respondent’s real estate counsel with respect to any proceeds of sale payable to the Respondent.

The Respondent was ordered to provide a copy of the court’s endorsement of March 2, 2018 to his counsel and he was to obtain from his counsel proof of the “non-dissipation” order that the Respondent alleged was registered on the property. The Respondent was also ordered to obtain a date for his Motion to Change and to serve FRO with any documents he obtains by May 1, 2018 by Fax.

On consent, the hearing was adjourned for compliance with the orders of the court. [ 24 ] On the next date of May 4, 2018 the court was advised that both the Respondent and FRO counsel had informed Carolyn Crate, the Respondent’s real estate lawyer, about the disclosure that the court sought from her. However, Ms Crate advised that she was no longer the Respondent’s counsel and his real estate file had been transferred to another lawyer.

The Respondent did not dispute this information nor did he reveal the name of his new real estate lawyer. [ 25 ] The Respondent attached to his affidavit of March 25, 2018, a letter from Ms Crate dated March 20, 2018, that she had received a Notice of Garnishment from FRO but as the transaction had not closed she was not able to send any funds but that once the cottage was sold that his share of the next proceeds would be sent to FRO. [ 26 ] A default hearing date was set for May 29, 2018 and the Respondent was permitted to file an updated affidavit. [ 27 ] As indicated based on the many delays and uncertainty as to whether or not the Respondent’s cottage had been sold, the Respondent’s request for an adjournment of the hearing was denied. [ 28 ] The Default hearing proceeded based on the written materials filed.

The Director relied on the Notice of Default Hearing, the Statement of Arrears and affidavit of Sharon Charlery sworn March 1, 2018 and a copy of the First Nations Land Registry Parcel Abstract Report. Counsel for FRO also relied on the trial decision of Justice Kaufman and the decision of Justice McGee. The Respondent relied on his affidavits sworn March 25 and May 23, 2018 and his financial statement sworn September 28, 2017. Although the Respondent did not file a formal Dispute I have considered his affidavit and the exhibits attached to be his dispute. There was no request for oral evidence. 3.

Applicable legal principles [ 29 ] A Default hearing is governed by the scheme set out in

section 41 of the Family Responsibility and Support Arrears Enforcement Act (“FRSAEA”)) and subrule 30 of the Family Law Rules (“FLR”). The Director may initiate the default proceeding. The Director prepares a statement of arrears. The payor files a financial statement and, if desired a default dispute. The court may hear oral testimony, direct the production of other relevant documentation and add parties to the default proceedings. [5] [ 30 ] At the default hearing, the amount of arrears owed and the payor's ability to pay are the central issues. [ 31 ] Subsection 41 (9) of the Act puts the onus on the payor, as follows: Presumptions at hearing

(9) At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director's office. [ 32 ] The court has a broad range of remedies available when it finds that the payor has failed to pay support without a valid reason. [ 33 ] Any one of those powers may be exercised by the court unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order. [6] [ 34 ] Subsection 41 (10) of the FRSAEA sets out the powers of the court on a default hearing as follows:

Powers of court

(10) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor, (

a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears; (

b) discharge the arrears in full by a specified date; (

c) comply with the order to the extent of the payor's ability to pay; (

d) make a motion to change the support order; (

e) provide security in such form as the court directs for the arrears and subsequent payment; (

f) report periodically to the court, the Director or a person specified in the order; (

g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur; (

h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and (

i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner. [ 35 ] Subsection 41 (11) of the FRSAEA states: No effect on accruing of arrears or other means of enforcement

(11) An order under subsection (10) does not affect the accruing of arrears, nor does it limit or otherwise affect any other means of enforcing the support order. [ 36 ] Subsection 41 (17) of the FRSAEA states: Imprisonment does not discharge arrears

(17) Imprisonment of a payor under clause (10) (

h) or (

i) does not discharge arrears under an order. [ 37 ] In Ontario (Director, Family Responsibility Office) v. Waller [7] Justice Sherr summarized the onus on a payor on a default hearing as follows: 1. The payor must show an inability to pay due to valid reasons. “A valid reason is an event over which the payor has no control which renders the payor totally without assets or income with which to meet his or her obligations, such as disability, illness or involuntary unemployment. 2.

The payor must prove that he or she has accepted responsibility to pay child support and has placed the child’s interests over his or her own; and 3. The payor must provide “frank disclosure” to the court. [ 38 ] In Ontario (Director, Family Responsibility Office) v. De Francesco, [8] Justice Carolyn Jones further explores the meaning of "valid reason" under section 41 (10) at paragraph 21 of her decision as follows: “Valid reasons, within the meaning of s. 41(10) of the Act, imply reasons for which the payor cannot be faulted or for which the payor does not bear responsibility in the culpable sense.

The court would expect some evidence of circumstances where, despite reasonable, diligent and legitimate efforts by the support payor to comply with the support order, the support payor has been unable to do so for

reasons that are not connected with an unwillingness to pay, a lack of effort, a failure to prioritize the support obligation or a deliberate neglect, failure or avoidance on the part of the payor.

Evidence relating to the past and present circumstances of the payor, including his financial circumstances since the time of the first default under the order, the manner in which he has applied his available income and assets, and his efforts to secure employment or income during the time that the arrears have arisen will have some bearing upon the determination of the legitimacy of the reasons the payor puts forward for his default under the support order. Circumstances that are beyond the control of the payor, resulting in the payor's inability to pay, would be valid reasons.

An illness on the part of the payor, including a mental disorder, rendering the payor completely unable to work on either a full or part-time basis, as in the case before the court, would amount to a valid reason for the payor's failure to pay." [ 39 ] In the case of Fischer v. Ontario (Director, Family Responsibility Office) [9] the Court of Appeal considered the imposition of a term of the imprisonment for non-payment and made the following observations: 1. Clause 41 (10) (

i) of FRSAEA contemplates an order of imprisonment for failure to pay an amount owing at the time the order is made or a failure to make future payments required under the order. 2. Enforcement legislation should be viewed as remedial rather than punitive. 3. Imprisonment is a last resort. Something more than non-payment is required. The payor's conduct must demonstrate a willful and deliberate disregard for the obligation to comply with court orders.

It is meant as a mechanism to enforce support and not as a means of punishing the payor. [ 40 ] At paragraph 25 of the decision the court further states as follows Further, the case law and the Act recognize that imprisonment for non-payment is meant as a means of enforcing the support order and not as a means of punishing the payor. The payor must be released upon payment of the amount owed: see s. 41(10) (i). A committal order, imposed as a term of either a temporary or final order in a default hearing, is intended to induce compliance with the payment terms of the order.

The prospect of imprisonment hopefully focuses the payor's mind on the importance of making the required payments. The enforcement rationale for imprisonment upon non-payment makes sense only if the payor has the ability to make the payments required by the order… [ 41 ] The maximum jail time should be reserved for the most severe cases [10] 4.

Application of legal principles to the facts 4.1 Has the payor rebutted the presumption that the Director’s Statement of Arrears is accurate? [ 42 ] The Respondent’s only submissions on this issue are that 50% of the arrears are interest and that arrears should not have been accruing while he was incarcerated. [ 43 ] The Statement of Arrears indicates that only $15.84 has been charged as interest on the arrears of periodic payments although clearly further interest could have been charged based on the terms of the outstanding orders. [ 44 ] The Respondent was incarcerated as a result of a warrant of committal issued on January 15, 2015 for non-compliance with the default order of March 13, 2013.

He was committed to jail for 180 days. At the default hearing held on March 13, 2013 the Respondent did not attend and did not contact FRO counsel. The hearing proceeded in his absence, being the 17 th attendance to date. No dispute or financial statement had been filed by the Respondent. A final order was made for payments of $2,715 per month with a lump sum payment of the arrears of $176,366 and if in default the Respondent was to be incarcerated for 180 days.

The Respondent was in jail while his counsel brought a motion to set aside the warrant of committal that was heard by Justice McGee on May 14, 2015 and that was subsequently dismissed. [11] [ 45 ] It is for this period of time that the Respondent submits that there should be no accumulation of arrears. In my view, it is extremely doubtful that any court would reduce arrears for the time the Respondent was incarcerated for not paying an outstanding support order.

Nevertheless, any remedy with respect to changing the outstanding support order and reducing the arrears is the proper subject of a Motion to Change and does not rebut the presumption that the Director’s Statement of Arrears is accurate. [ 46 ] Therefore, the payor has not met the onus on him to rebut the presumption that the Statement of Arrears is accurate. 4.2 Has the payor met the onus on him to prove an inability to pay? [ 47 ] It is the position of the Respondent that he has no income and no ability to pay the outstanding order.

It is also submitted that as a result of the Director taking his driver’s licence and passport his opportunity to obtain employment has been restricted. [ 48 ] The Respondent filed a financial statement sworn September 2017 that indicates his income is $23,520. The only assets he lists are a cottage valued at $30,000, tools of $600 and a Tangerine bank account with a balance of $56.00. The only debt is the amount

owing to FRO. Attached to his financial statement are 3 cheques payable to him personally from Giuseppe Mariotti, King City Glass Service, marked as “loan repayment” that total $2,450. There is no explanation regarding these funds. No updated financial statement was filed. [ 49 ] The Respondent also filed copies of his tax returns for the years 2014, 2015 and 2106 indicating nil income.

No Notices of Assessments nor his 2017 income tax return were filed. [ 50 ] However, in the Respondent’s affidavit sworn May 23, 2018 the Respondent deposes that he incorporated a numbered company and recently received a 6 month contract form Huinink Corporation for $40,000 with an option to renew on their part. He attached to his affidavit copies of his invoices and 3 cheques payable to his numbered company received from about mid-April to mid-May 2018 that total $6,032.96. If the contract is renewed based on the funds he has received to date, the Respondent could earn at least $72,395 a year.

The Respondent has not provided any evidence or information about any expenses he may have with respect to his business. [ 51 ] The Respondent also deposes that he has not taken any money from the funds he has received. He does not explain where this money is deposited and has not provided any bank records from his numbered company.

I note that the funds paid by the Respondent to FRO, in accordance with the temporary default order, are being paid from the bank account of his parents. [ 52 ] The Respondent also deposes that the cottage was not sold because the non-dissipation order was not lifted and the buyer is seeking damages for breach of contract. However, the order of Justice Kaufman lifted the earlier non-dissipation order and the First Nations Land Registry Parcel Abstract Report filed by FRO indicates that the non-dissipation order was lifted and therefore there are no impediments to a sale.

Even if the Respondent is correct that the property cannot be sold due to the non-dissipation order not being lifted, since it is the recipient who would be entitled to the Respondent’s share of the proceeds it is inconceivable that she would not co- operate to resolve any impediment to a sale. [ 53 ] The Respondent also deposes that he only owns 1/3 interest in the cottage that he values at $30,000.

The Respondent has never provided any proof that he is only entitled to a 1/3 interest in the cottage property and further, there is proof that the sale price of the cottage was $180,000. [ 54 ] During the Respondent’s submissions, he made an emotional outburst that there was no justice, he came out of the divorce with nothing and asked how he could give the last thing he owned to FRO to give it to his wife who received over a million dollars.

It became abundantly clear that the Respondent simply did not feel there was any “justice” in him being required to sell his cottage. [ 55 ] The Respondent has not provided this court with full and frank disclosure. He has not fully complied with the disclosure orders made in this proceeding.

Most relevant to the issues of his ability to pay the ongoing support payments and the arrears, he did not disclose that the cottage had been sold as this information was obtained from the recipient, he has not provided any proof of the dissipation of his assets since 2012, he has not provided copies of his personal and corporate bank accounts, his financial statement is devoid of any details and was not updated, he did not provide any specific details regarding his current employment or financial statements of his numbered company. [ 56 ] I find that the Respondent has willfully and deliberately impeded the sale of the cottage property and that it is an asset that could be sold.

The Respondent is now employed and there is no evidence that he is unable to continue to work either as a result of his present contract or find other employment. [ 57 ] The Respondent has a pattern of non-disclosure and being evasive.

Justice Kaufman in his trial decision makes the following comments about the Respondent’s credibility and lack of disclosure at paragraphs 86, 87, 88 and 93: However, at the end of the day, the difficulties encountered by the Respondent in complying with court process impacted in the court’s analysis of the evidence received and the credibility of the parties. … In general, much of the recitation of the evidence received reflects the difficulties with many inconsistencies in the Respondent’s evidence. The court found him to be evasive at many times in his testimony…..

The difficulty for the court is that it has been left to guess on many financial issues…. The support issue is also problematic caused by the lack of disclosure of Income Tax Returns and a general lack of credibility in the overall testimony of the Respondent. [ 58 ] In the decision of Justice McGee [12] dated May 29, 2015 to set aside the warrant of committal, she outlines in considerable detail the history of the Respondent’s proceedings with the recipient and the extensive history of enforcement proceedings with FRO.

Justice McGee also compared the assets the Respondent owned at the time of the trial before Justice Kaufman and those he alleged he owned in 2015. She noted that he had cashed in about $40,000 of RRSP without using any of those funds to pay his support obligation.

No explanation was given in that hearing or before me how the funds from his assets such as vehicles worth $53,500 or his business valued at $200,000 were used. [ 59 ] Justice McGee observed the Respondent might have avoided the court issuing a warrant of committal on January 15, 2015 if he had reported that a sale or refinancing of his home or his cottage was imminent so he could discharge a portion of the arrears or he might have provided documentation showing that he was in the process of securing funds through his business or completing a contract that would result in a payment of support. [ 60 ] On this default hearing, the Respondent also failed to provide any of this information.

If the recipient had not advised FRO about the sale of the Respondent’s cottage, it is likely the Respondent would have completed that sale without the recipient obtaining the funds owing to her. [ 61 ] The Respondent is capable of earning income and has only recently disclosed that he obtained a contract through a company he

incorporated. He therefore has the ability to pay ongoing support and he has at least one asset, his cottage that could be sold to discharge a portion of the arrears. Given the Respondent’s lack of complete disclosure it is not known if he has other assets. [ 62 ] I therefore find that the Respondent has failed to rebut the presumption of his ability to pay the ongoing spousal support order, failed to prove that he has a valid reason for his default and failed to provide required disclosure.

The Respondent has the means to satisfy the arrears. 4.3 What remedy should be imposed? [ 63 ] The Respondent has a history of non-payment of support. The Respondent submitted that until the trial decision of Justice Kaufman ordered retroactive child support and spousal support he was up to date on his support. However, the Statement of Arrears clearly indicates that the Respondent has never been up to date or complied with his support obligations. [ 64 ] The Respondent has not acted in good faith.

He has a history of diverting funds, not fully disclosing his assets or the dissipation of those assets and failing to provide full and complete financial disclosure. [ 65 ] The Respondent has a history of prolonging court proceedings to avoid payment of support. There were 9 attendances on this default hearing and 17 attendances on the prior default hearing. He has failed to proceed on his Motion to Change although given almost a year and a half to do so. [ 66 ] It is clear that other methods of enforcement have failed.

The Respondent’s driver’s licence was suspended and passport revoked and that did not result in compliance with the court order. Although the Respondent submitted that if his driver’s licence and passport were returned that he could earn income, when he had them he still claimed he could not find employment and did not pay support. [ 67 ] The Respondent is a sophisticated payor who is aware of the fact that he faces imprisonment if he is in non-compliance with the court orders.

He has already spent time in jail due to non-payment. [ 68 ] There has been a committal term attached to the temporary default order and the Respondent has been in compliance. It therefore appears that an imprisonment term for any default has had the required effect. [ 69 ] Even though the ongoing order relates only to spousal support, this does not diminish the Respondent’s obligation to comply with court orders.

The substantial amount of arrears that have accumulated relate to both child support and spousal support. [ 70 ] The Respondent’s proposal that he pay the ongoing support and $300 per month on account of arrears is not acceptable.

He makes no proposal with respect to any lump sum payment and it is clear that he does not intend to sell his cottage and that he intends to do whatever he can to block that sale. [ 71 ] The order proposed by counsel for FRO balances the need to send a strong message to the Respondent that he cannot simply ignore his obligations but still provides him with time to proceed with his Motion to Change and to arrange his finances to discharge the arrears. [ 72 ] Given the Respondent’s payment history and the amount of arrears owing, this is a case where a significant committal term for non-payment is appropriate.

Counsel for FRO seeks payment of the ongoing support and arrears totalling $3,000 per month with a committal term of 5 days for default of each periodic payment, a lump sum of $90,000 to be paid by September 3, 2018 and in default 60 days and the balance owing by June 1, 2019 and in default 100 days. I find these orders are appropriate. [ 73 ] Counsel for FRO also requests an order that the Respondent can be served by ordinary mail with a motion for warrant of committal.

The Respondent will be aware if he has not made the required payments and FRO should not be put to any further expense in attempt to serve the Respondent personally. 5. Conclusion [ 74 ] There will be a final default order as follows: 1. As of May 25, 2018, the amount of arrears owing at $307,372.74 including an administrative fee of $2,400. 2. Commencing June 1, 2018, the Respondent support payor shall pay the ongoing support of $1,457.38 in addition to $1,542.62 for a total of $3,000.00 per month.

In default of payment, the Respondent support payor shall be committed to jail for five (5) days for each and every default.

3. The Respondent support payor shall pay a lump sum of $90,000 by no later than September 3, 2018. In default of this payment, the Respondent support payor shall be committed to jail for sixty (60) days. 4. The Respondent support payor shall pay the outstanding balance of the arrears on or before June 1, 2019. In default of this payment, the Respondent support payor shall be committed to jail for one hundred (100) days. 5.

The Director, Family Responsibility Office shall be permitted to serve the Respondent support payor with any motion for a warrant for committal, if required, by regular mail to the last known address in their files. 6. Counsel for the Director shall prepare this order. Approval of the order as to form and content by the Respondent support payor is dispensed with. Released: June 4, 2018 Signed: Justice Roselyn Zisman