2024 ONCJ 64, 2024 ONCJ 64

CITATION: Ontario (Director, Family Responsibility Office) v. Ramsay , 2024 ONCJ 64 DATE: February 5, 2024 COURT FILE NO. FO-40779-20 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) THE DIRECTOR OF THE FAMILY RESPONSIBILITY OFFICE FOR THE BENEFIT OF REBECCA LYNN CHRISTIE DIANE GILLIES, for the APPLICANT ) ) APPLICANT ) ) - and – JASON MICHAEL RAMSAY ACTING IN PERSON RESPONDENT ) ) ) ) HEARD: JANUARY 31, 2024 ) ) JUSTICE S.B. SHERR AMENDED ENDORSEMENT Part One – Introduction [ 1 ] The default hearing in this matter was heard on January 31, 2024.

The applicant (the Director) seeks to enforce the support arrears that have accumulated under the order of Justice Roselyn Zisman dated January 13, 2023. [ 2 ] The Director seeks a default order against the respondent (the payor) on the following terms:

a) He pay ongoing child support of $1,423 each month, and spousal support of $842 each month, increasing to $1,244 each month, starting on May 1, 2024, failing which he shall be committed to jail for 3 days for each missed payment, or until the outstanding amount is earlier paid in full.

b) He be immediately committed to jail for 120 days, or until he earlier pays the outstanding support arrears of $97,455.

c) In the alternative, he pay the outstanding support arrears within 30 days, failing which he will be committed to jail for 120 days, or until the outstanding amount is earlier paid in full.

d) In the further alternative, he pay a lump sum towards the outstanding support arrears forthwith, with a

schedule of lump sum payments satisfying the remaining arrears within one year, with a committal term attached for any default in payments. [ 3 ] The payor submitted he cannot afford to pay the court-ordered support. He asked the court to make a different support order and not send him to jail. [ 4 ] The payor gave oral evidence and was cross-examined at the hearing. He was permitted to file documentation he late-served on the Director. Part Two – Background facts [ 5 ] The payor is the father of three children. Two of the children live with the support recipient.

The other child lives with the payor. [ 6 ] The payor started an application in this court in October 2020. The payor and the support recipient engaged in lengthy litigation with several court appearances. [ 7 ] On November 23, 2021, Justice Zisman released written reasons on a temporary support motion. See: Ramsay v. Christie , 2021 ONCJ 603 .

Justice Zisman imputed annual income of $96,000 to the payor and ordered him to pay child support of $1,423 each month, and spousal support of $484 each month, starting on January 1, 2021, increasing to $870 each month, starting on August 1, 2021. [ 8 ] Justice Zisman wrote at paragraph 12 of her decision, “the father has continued a pattern of frustrating the orderly resolution of this matter and caused the mother to incur unnecessary legal expenses”.

Justice Zisman found the payor delayed in providing financial disclosure and the disclosure he provided was incomplete. [ 9 ] On January 10, 2022, Justice Zisman ordered the payor to pay the support recipient her costs of the motion of $7,848. The payor has not paid anything towards these costs. [ 10 ] On June 1, 2022, Justice Zisman stayed the payor’s application due to his non-compliance with disclosure orders she had made on April 26, 2021, June 23, 2021 and February 25, 2022. Her order set out the stay would be lifted if the payor complied with the disclosure orders.

However, if he did not, his application would be dismissed and the matter would proceed to an uncontested hearing. [ 11 ] The payor did not comply with the disclosure orders. On October 6, 2022, Justice Zisman dismissed his application. However, she gave him the opportunity to make submissions at the uncontested hearing, based on the materials filed. [ 12 ] The uncontested hearing proceeded on January 10, 2023. Justice Zisman permitted the payor to file additional affidavit evidence. [ 13 ] Justice Zisman delivered written reasons for decision dated January 13, 2023.

She imputed the payor’s annual income at $96,000. She ordered him to pay child support of $1,423 each month starting on January 1, 2021. She also ordered him to pay spousal support of $1,277 each month, starting on February 1, 2022, decreasing to $842 each month starting on September 1, 2022, and

increasing again to $1,244 each month, starting on May 1, 2024. [ 14 ] Justice Zisman made the following finding of fact in her decision:

a) The imputation of income to the payor was based on him diverting income, underreporting income on his income tax returns, unreasonably deducting business expenses from income, failing to provide income information when required to do so, breaching costs orders, and based on his lifestyle. The inference was that the payor had undeclared income.

b) The payor filed inconsistent financial statements.

c) The payor conducted himself in the litigation in a manner to delay the proceedings and frustrate an accurate examination of his financial circumstances.

d) The payor’s actual income was impossible to determine due to his incomplete, confusing and contradictory disclosure.

e) The payor lost his paralegal license from the Law Society of Ontario due to his own misconduct. [ 15 ] Justice Zisman ordered the payor to pay the support recipient’s costs of $5,339.25. [ 16 ] The payor did not appeal this order. [ 17 ] The payor has not brought a motion to change this order. [ 18 ] The payor has paid no child support, spousal support or costs to the support recipient since this order was made. [ 19 ] The Director issued its Notice of Default hearing on August 21, 2023. [ 20 ] The Payor did not file a Dispute. [ 21 ] On October 17, 2023, at First Appearance Court, the Director and the payor entered into a temporary consent.

It was incorporated into a court order. The payor agreed to:

a) Provide financial disclosure by November 23, 2023. This disclosure included his 2020-2022 income tax returns, a sworn financial statement, pay stubs, and proof of gross income and expenses in 2022.

b) Commence a motion to change. [ 22 ] The case returned to court on November 23, 2023. The payor was not in compliance with the consent order made on October 17, 2023. This default hearing was scheduled. [ 23 ] The payor provided the Director with partial disclosure at the default hearing. However, he did not provide his last three complete income tax returns. He said his 2021 and 2022 income tax returns were in the process of being prepared by his accountant.

[ 24 ] The Director filed its updated Statement of Arrears at the hearing. Its contents were not disputed by the payor. The payor’s arrears as of January 31, 2024 are $97,455. Part Three – The payor’s evidence [ 25 ] The payor claimed he has never earned anywhere close to the annual income imputed to him by Justice Zisman. He testified he has not had the ability to pay the support ordered. [ 26 ] The payor set out a number of reasons why he has been unable to earn income.

He said his business was impaired by the pandemic and his paralegal license was suspended by the Law Society of Ontario after multiple complaints were made against him. He said: “Some I won, some I lost”. He stated four orders were made by the Law Society of Ontario against him over five years. He said, combined with the stress of his separation and losing his children, he spiraled into depression. He stated medication he is taking is working and he is not using his medical issues as an excuse not to work – he is prepared to work now.

Lastly, he said employers do not want to deal with potential employees involved with the Director. [ 27 ] The payor claimed he earned about $27,550 in 2023. He said this was based on a mix of outstanding receivables from his business and loans made to him. He said he did not want to reveal to the support recipient who had lent him money, so instead, he planned to declare the loans as income and pay tax on them. [ 28 ] The payor said he has another $3,000 of account receivables he may or may not be able to collect.

He said this is his only income source to support himself. [ 29 ] The payor testified he had recently been offered a job to pay him $80,000 annually, with additional bonuses, starting in January 2024, as a Logistics Manager. He filed a letter from the employer. However, the payor said he could not take this job because his passport has been suspended by the Director, and the job entails international travel.

He also said the job required him to have a driver’s license and his had been suspended by the Director. [ 30 ] The payor subsequently told the court the employer who offered him this job was his friend. [ 31 ] The payor also testified he has been offered a job to create digital presentations and do marketing projects for an artificial grass company. This job will pay him about $48,000 annually, He provided a letter from this employer.

Again, the payor said he requires his driver’s license for this job. [ 32 ] The payor asked the court to make an order that would allow him to have his passport and driver’s license re-instated so he could take this job. The payor testified he wants to pay a fair amount of support and wants the opportunity to work and earn income. [ 33 ] The payor testified he has not worked since Justice Zisman made the final order. He did not provide a job search list. [ 34 ] The payor filed a financial statement at the hearing. He deposed he has not paid his monthly rent of $2,400 for eight months.

He said he had been involved in Landlord and Tenant proceedings with his landlord. [ 35 ] The payor set out numerous debts in his financial statement, including debts to the Law Society of Ontario of $8,500 for two costs orders, to the Canada Revenue Agency of $8,146, a federal government loan of $60,000 and rent arrears of $19,200. [ 36 ] The payor deposed he made direct payments to the two children living with the support recipient in 2023, totaling about $2,100.

Part Four – Legal considerations [ 37 ] The current statutory scheme governing default hearings is found in

section 41 of the Family Responsibility and Support Arrears Enforcement Act (the Act) and rule 30 of the Family Law Rules . The Director may initiate the default proceeding. The Director prepares a statement of arrears. The payor files a financial statement and, if so inclined, a default dispute. The court may hear oral testimony, direct the production of other relevant documentation and add parties to the default proceedings. See: Fischer v.

Ontario (Family Responsibility Office) , 2008 ONCA 825 , paragraph 17 . [ 38 ] At the hearing, the amount of arrears owed and the payor's ability to pay are the central issues. 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. [ 39 ] Subsection 41 (10) of the Act 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. [ 40 ] Subsection 41 (11) of the Act 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.

[41] Subsection 41 (17) of the Act reads: Imprisonment does not discharge arrears

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

h) or (

i) does not discharge arrears under an order. [42] At a default hearing, the payor must show an inability to pay due to valid reasons. A valid reason is an event over which thepayor has no control which renders the payor totally without assets or income with which to meet his or her obligations, such as disablingillness or involuntary unemployment. See: Ontario (Director, Family Responsibility Office) v.

Carney 2004 ONCJ 11. [43] The payor must also show at a default hearing that he or she has accepted their responsibilities and placed the child’s interestsover their own and has provided frank disclosure to the court. See: Ontario: (Director, Family Responsibility Office) v. Labrash, (ON CJ), 2002 CarswellOnt 90 (OCJ). [44] In Ontario (Director, Family Responsibility Office) v.

De Francesco, O.J. [2012] 6338, Justice Carolyn Jones further exploresthe meaning of “valid reason” under subsection 41 (10) as follows at paragraph 21 of her decision: 21 Valid reasons, within the meaning of s. 41(10) of the Act, imply reasons for which the payor cannot be faulted or for which thepayor does not bear responsibility in the culpable sense.

The court would expect some evidence of circumstances where, despitereasonable, diligent and legitimate efforts by the support payor to comply with the support order, the support payor has been unable to doso for reasons that are not connected with an unwillingness to pay, a lack of effort, a failure to prioritize the support obligation or adeliberate 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 availableincome and assets, and his efforts to secure employment or income during the time that the arrears have arisen will have some bearingupon the determination of the legitimacy of the reasons the payor puts forward for his default under the support order. Circumstancesthat 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 thepayor, including a mental disorder, rendering the payor completely unable to work on either a full or part-time basis, as in the case beforethe court, would amount to a valid reason for the payor's failure to pay.” [45] The court is not required to incorporate the payment terms of the existing support order in its default order. See: DeFrancesco,supra, par. 22. [46] In determining ability to pay, the payor must give priority to child support before consumer debts. See: Baumann v. Clatworthy,(1991) (ON SC), 35 R.F.L. (3d) 200 (Ont. General Division).

Support arrears also take priority over judgment debtsand unsecured debts. See: Subsection 2 (3) of the Creditor’s Relief Act. [47] A debtor should not be allowed to advance reasons for non-payment which were present at the time of the default order. See:Ontario (Director, Family Responsibility Office) v. Chiang, [2014] ONCJ 85. [48] Inability to pay is not the same as difficulty paying. See: Aitken v. Aitken, (ON CJ), [1992] W.D.F.L. 1206(Ont. Prov. Ct.). [49] Clause 41 (10) (

i) of the Act contemplates an order of imprisonment for failure to pay an amount owing at the time the order ismade or a failure to make future payments required under the order: See: Saunders v. Saunders, (ON SC), [1987]O.J. No. 1578, 10 R.F.L. (3d) 284 (Dist. Ct.), at para. 11; Fischer, supra. [50] Enforcement legislation should be viewed as remedial rather than punitive. See: Saunders, supra. [51] Imprisonment is a last resort. Something more than non-payment is required. The payor’s conduct must demonstrate a willful anddeliberate disregard for the obligation to comply with court orders.

It is meant as a mechanism to enforce support and not as a means ofpunishing the payor. See: Fischer, supra. [52] In Fischer, supra, the court writes at paragraph 25: Further, the case law and the Act recognize that imprisonment for non-payment is meant as a means of enforcing the support order andnot as a means of punishing the payor. The payor must be released upon payment of the amount owed: see s. 41(10)(i). A committalorder, imposed as a term of either a temporary or final order in a default hearing, is intended to induce compliance with the paymentterms of the order.

The prospect of imprisonment hopefully focuses the payor's mind on the importance of making the requiredpayments. The enforcement rationale for imprisonment upon non-payment makes sense only if the payor has the ability to make thepayments required by the order: see Saunders, at paras. 11-13… [53] The maximum jail time should be reserved for the most severe cases. See: Ontario (Director, Family Responsibility Office) v. Kirkpatrick (2008) (ON SC), 60 R.F.L. (6th) 435 (SCJ).

[ 54 ] In FRO v. Hennessy , 2022 ONSC 2594 , the court set out the following non-exhaustive set of factors (the Hennessy factors) to consider before ordering imprisonment: 1. Pattern of accumulated arrears: it is the pattern of the payor’s non-payment that should be more compelling than the total amount of support arrears owing. At first look, larger sums of support arrears might appear to reflect more blameworthy conduct.

However, one must bear in mind that support arrears are relative to the monthly support award: sustained periods of non-payment, whether $100 per month, or $10,000.00 per month can be equally devastating to the recipient. As such, the period of non-compliance is likely more probative to the nature of the payor’s non-compliance than the total quantum owing. 2.

Voluntary v. involuntary payments: In reviewing the Director’s Statement of Arrears filed, the court may consider whether the payor’s historic contributions towards the support obligation were made by way of direct payment from the support payor, or by involuntary diversions. Such information might be relevant to whether the payor was making efforts to comply with the terms of the operative support order or playing a game of ‘catch me if you can’. 3. Income source disclosure: Similarly, the court might consider the payor’s history of income disclosure.

In some cases, the payor will diligently and voluntarily disclose income sources to the Director or the Recipient, facilitating the prompt garnishment of income streams. In other cases, the payor will not disclose changes in employment, leaving the recipient and FRO caseworker to attempt to chase and locate income sources. 4. Previous findings: It is not inappropriate to review the historic court record, and in particular, any previous court endorsements which speak to the payor’s willingness or unwillingness to accept their obligation to support recipients.

For example, if income was imputed to a payor due to a finding of intentional unemployment or underemployment, or because the payor failed to produce the financial disclosure as required, the court may be more likely to find that any non-payment of support was wilful and deliberate in nature rather than as a result of unfortunate circumstance.

Likewise, where a default hearing continues after an operative support order has been changed (i.e. under s. 41(22) of the FRSAEA), the court may consider whether any of the periods of non-payment of support were mitigated, excused or forgiven for legitimate reason in the subsequent order. 5. Timeliness of actions of payor: It is not uncommon that a payor does not take steps to commence a Motion to Change proceeding until they have been brought before the court on default notice.

However, once the payor indicates that they intend to seek changes to the operative support order, the court may consider whether the payor took bona fide steps to comply with court procedure and seek change on the merits, or whether the payor was simply engaging in further tactics to delay payment to the recipient. 6. Other evidence of prioritization of self over support: In some cases, there may be lifestyle or other financial information before the court which causes the court concern that the payor has prioritized other expenditures over compliance with the support order.

It is not inappropriate to consider information relating to the payor’s assets or expenditures, if available, in assessing whether their non- payment is wilful and deliberate. [ 55 ] In Director, Family Responsibility Office v. Masoud, 2021 ONCJ 265 , this court wrote that the court must also consider the interests of the children and the support recipient who are not before the court, and the consequences to them of the payor’s failure to meet his support obligations. The court wrote at paragraphs 71 and 72: [71] In Michel v.

Graydon , 2020 SCC 24 , at paragraph 121 , the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty. [72] It is imperative that courts not contribute to that hardship and to the feminization of poverty by failing to enforce valid and subsisting court orders when a payor does not establish a valid inability to pay and fails to provide adequate financial disclosure – as is the case here.

Part Five – Analysis [ 56 ] The payor was only able to partially rebut the presumption he has the ability to pay the entire amount of arrears owing immediately. He has dug himself a financial hole. He is in significant debt, including owing money to the Canada Revenue Agency, the federal government and costs orders to the Law Society of Ontario.

He is helping to support one of his children who lives with him. [ 57 ] However, the payor did not rebut the presumption that he is able to make the ongoing support payments together with significant payments towards the existing arrears. [ 58 ] The payor was not a credible witness. He has not acted in good faith regarding his support obligations. He did not provide full and frank disclosure. The court does not accept his evidence about his income or about his ability to earn income. The court makes this finding for the following reasons:

a) The court found the payor’s oral evidence to be scattered and often difficult to follow. He did not answer questions directly.

b) The payor did not provide the disclosure required to properly assess his income. He did not comply with the October 17, 2023order to provide disclosure by November 23, 2023. He only provided some incomplete disclosure at the hearing.

c) The payor failed to provide his complete 2020 to 2022 income tax returns. This would have included his Statement of Businessand Professional Affairs. This was basic disclosure required to meaningfully assess his income. The self-employed have an inherentobligation to put forward not only adequate, but comprehensive, records of income and expenses, from which the recipient can drawconclusions and the amount of child support can be established. See: Ontario (Director, Family Responsibility Office) v. Salman, 2022ONCJ 329.

d) The payor failed to provide his 2021 and 2022 notices of assessment.

e) The payor said he was in the process of having his 2021 and 2022 tax returns completed. These should have been prepared along time ago. Justice Zisman emphasized to the payor the importance of providing complete income tax returns when she imputedincome to him in her November 23, 2021 temporary decision. Yet, he had still not provided meaningful financial disclosure for the trialon January 10, 2023. Again, income was imputed to him and his failure to provide disclosure was the dominant reason. Despite this, hehas still not had his income tax returns prepared.

f) The payor failed to provide meaningful evidence of his 2023 income. He provided one bank account and said the deposits in itreflected his income. This evidence was self-serving, incomplete and unreliable.

g) The payor’s lack of financial disclosure has been chronic and intentional. He has delayed and obfuscated to avoid his supportobligations. He acknowledged he is a sophisticated litigant. He understands legal process or knows how to learn about legal process. Hewas a paralegal for 14 years.

h) The payor’s financial statement was unreliable. He claimed to have annual expenses of about $64,000. However, in cross-examination he said he was not paying many of the expenses he had been claiming to pay.

i) The payor’s evidence about his income made little sense. It stretched credulity to believe his evidence that he intends to reportpersonal loans to the Canada Revenue Agency as income in 2023.

j) The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosureobligations as provided for in

section 21 of the guidelines. See: Smith v. Pellegrini, (ON SC), [2008] O.J. No. 3616,(Ont. S.C.); Maimone v. Maimone, (ON SC), [2009] O.J. No. 2140, (Ont. S.C.); Isaya v. Ozo, 2022 ONCJ 321. Theparty must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is beforethe court. See: Charron v. Carriere, 2016 ONSC 4719. The court draws an adverse inference against the payor for his failure to providemeaningful financial disclosure.

k) The payor’s evidence about his rental arrears also made little sense. He described a Landlord and Tenant Hearing where he saidthe landlord was found to be dishonest. He then said he hasn’t paid rent because his landlord is in China and he can’t reach him to payhim. He said the landlord told him not to contact him. He stated, “what can I do”? He then said he cannot afford to pay the rent.

l) The payor provided two letters to the court about potential jobs. The letters did not state he required a passport or a driver’slicense for the jobs. The job offer from one employer was not arm’s length – it was from the payor’s friend. Combined with the payor’shistory of obfuscation and the letters being unsworn evidence, the court gave them little weight.

m) The payor has not acted in good faith and has not come to court with clean hands. He has not paid any support or costs to thesupport recipient since Justice Zisman made her final order. According to his own evidence, he could have been making some supportpayments. He has been defiant about not complying with the support and costs orders and made clear to the court he strongly disagreedwith them. [59] Any difficult financial circumstances the payor is now facing have been self-created.

[60] The payor has not accepted responsibility for his failure to pay support. It was informative at the hearing to hear him blameeveryone except himself for his financial predicament. For instance:

a) He accused the support recipient and her lawyer of lying to the court.

b) He advised the court he has reported the support recipient’s lawyer to the Law Society of Ontario.

c) He blamed his previous lawyer for not advising him that he could appeal Justice Zisman’s order.

d) He blamed the support recipient and her brother for not forwarding calls to him, resulting in complaints about him by his clients tothe Law Society of Ontario.

e) He accused his landlord of dishonesty.

f) He said he could not force his accountant to prepare his income tax returns more quickly. He said, “my hands are tied”.

g) He said he could not understand how Justice Zisman could have imputed income to him.

h) He blamed the Director for not making an agreement to restore his passport and driver’s license – costing him employment. [61] The payor has improperly prioritized his own interests to his support obligations. [62] An important consideration in this analysis is that Justice Zisman’s decision is recent – just one year old. She assessed theevidence and imputed income to the payor. [63] The payor led no evidence of any meaningful change in his financial circumstances other than an increase in debts arising fromhis failure to pay support or rent. His core argument was that Justice Zisman’s decision was wrong.

However, he did not appeal herdecision and has not brought a motion to change it. [64] Imputed income matters. In in Trang v. Trang, 2013 ONSC 1980, Justice Alex Pazaratz wrote at paragraph 51: When a court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order awaitingbetter disclosure, or further review.

It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriateto rely on – or wait for -- representations from the payor. [65] Where income has been imputed, a support payor is not going to be able to vary that order unless he can demonstrate that therehas been a material change since the making of that order. It is not open to a litigant to fail to produce financial information, run the riskthat a trial judge will impute income, and then come back to a new court and suggest that the imputed income was wrong.

See: Ruffolo v.David, 2016 ONSC 754 , 2016 CarswellOnt 2151 (Ont. Div. Ct.). While this was written on a motion to change, this comment isalso germane to default hearings. Part Six – The default order

[ 66 ] This leaves the court to determine what default order is appropriate in these circumstances. [ 67 ] The court’s sympathies lie with the support recipient and the two children residing with her. They have not received a fair amount of support from the payor. The support recipient has had to engage in lengthy litigation chasing after the payor to pay support.

Up until now, the payor has been able to dodge his support obligations. [ 68 ] It is one of the court’s primary objectives in a default hearing to maximize the enforcement of an order. [ 69 ] The court also has to consider imprisonment as the last resort for enforcement. In making a default order with a term of imprisonment attached, the court should be confident that the payor has the ability to make the payments ordered.

The consequences to the payor if the court orders an amount he cannot afford are profound. [ 70 ] Reconciliation of the objective to maximize the enforcement of an order while not unjustly imprisoning a payor for non-payment of a default order is a delicate balancing act for the court. This court prefers to err on the side of caution in balancing these considerations. See: Ontario (Family Responsibility Office) v. Levy , 2016 ONCJ 474 .

The court will not immediately commit the payor to jail for 120 days, or until all the arrears are paid, as requested by the Director. [ 71 ] However, the court accepts the Director’s position that a committal term should be attached to any payment order and an immediate committal order is warranted in these circumstances. Applying the Hennessy factors, the court finds:

a) The payor has a terrible payment history. Significant arrears have accumulated.

b) The payor has been unwilling to pay child support. He has defiantly refused to pay any support pursuant to Justice Zisman’s final order.

c) The payor has historically not provided complete, timely or accurate financial disclosure.

d) Previous findings have been made that the payor has delayed and impeded the support recipient’s efforts to obtain and collect support. He has hidden his true income.

e) The payor has demonstrated little regard for court orders.

f) The payor has prioritized his own interests over his support obligations.

g) Other attempts made to enforce this order have failed – including suspensions of the payor’s passport and driver’s license. The payor will avoid paying support until the consequences are such that compliance is the preferred option. The order this court makes must have teeth to it if it is to be effective and to achieve long-awaited justice for the support recipient and the two children living with her. This is an appropriate case to impose the last resort of imprisonment. [ 72 ] The payor does not have identifiable revenue sources from which the Director can directly deduct monthly arrears payments.

Accordingly, the court will structure its order to require the payor to make significant lump sum payments to satisfy the arrears over the next three years, including an immediate payment of $15,000. Committal terms will be attached to this order. A warrant of committal will be issued regarding the immediate payment of $15,000, to be held in abeyance to the return date. [ 73 ] The matter will be adjourned until March 12, 2024 at 2 p.m.

Unless the payor can provide evidence to convince the court otherwise, if the $15,000 payment has not been made by the return date, the court will order the enforcement of the warrant of committal. Further, the payor is put on notice that if he fails to pay the ongoing March 1, 2024 support payment, a committal hearing will

be held on the return date regarding this payment. Part Seven – Conclusion [ 74 ] There shall be a final default order on the following terms:

a) Child and spousal support arrears are fixed in the sum of $99,720. This consists of the $97,455 found owing as of January 31, 2024, together with the amount of $2,265 that became due on February 1, 2024, for the payor’s ongoing child and spousal support payments.

b) The payor shall be committed to jail immediately for 90 days, or until such earlier time he pays $15,000 towards the arrears.

c) The payor shall then be required to pay the balance of the arrears as follows:

i) The sum of $10,000 on or before July 31, 2024. ii) The sum of $10,000 on or before December 31, 2024. iii) The sum of $10,000 by June 30, 2025. iv) The sum of $10,000 by December 31, 2025.

v) The sum of $10,000 by June 30, 2026. vi) The sum of $10,000 by December 31, 2026. vii) The sum of $10,000 by June 30, 2027. viii) The balance of arrears owing by December 31, 2027.

d) The payor shall be committed to jail for 30 days for each default of the lump sum payments set out in subparagraph (

c) above, or until such earlier time the payments are made.

e) The payor shall also pay the ongoing child support payments of $1,423 each month starting on March 1, 2024. He shall be committed to jail for 3 days, or until such earlier time the outstanding amounts are paid in full, for each payment in default.

f) The payor shall also pay the ongoing spousal support payments of $842 each month, starting on March 1, 2024, increasing to $1,244 each month, starting on May 1, 2024. He shall be committed to jail for 3 days, or until such earlier time the outstanding amounts are paid in full, for each payment in default.

g) The maximum length of time, cumulatively, the payor can be imprisoned under this default order is 180 days.

h) The matter shall return to court on March 12, 2024 at 2 p.m., in person. The warrant of committal arising from the court’s order in subparagraph (

b) above shall be held in abeyance and not enforced until then. The payor is also put on notice that if he fails to make the ongoing support payments due on March 1, 2024, a committal hearing will be held on the return date regarding the enforcement of this payment.

i) Nothing in this order precludes the Director from collecting arrears from any other source, including income tax or HST/GST refunds and lottery or prize winnings.

j) The payor shall provide the Director with copies of his full income tax returns, including all attachments and schedules, and his notices of assessment by June 30 th each year.

k) The Director may serve the payor with any motion for committal by both ordinary mail and email addressed to him at his last known addresses in its records, if he is served within six months. After six months, any motion must be served by special service. Released: February 5, 2024 __________________________ Justice Stanley B. Sherr