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No “Get Out of Jail Free” Card – What NOT to do When You Owe Child Support

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No “Get Out of Jail Free” Card – What NOT to do When You Owe Child Support

A recent Ontario decision illustrates that courts will get tough with payor spouses who allow themselves to accumulate significant child support arrears by putting their other interests in priority to their support obligations.

The facts were rather typical: Commencing in January of 2007, the father had been ordered to pay $300 in child support. However, over time he fell into significant arrears, to the point where he owed almost $10,000.

Faced with the father’s ongoing default in payment, the Family Responsibility Office (FRO) started proceedings against him. A total of 14 court appearances were required in order to try to deal with the matter. Eventually, the father agreed to pay $500 per month, comprised of the original $300 in ongoing support, and an additional $200 to be paid toward the outstanding arrears. As part of this order, the court decreed that for each missed payment, the father would spend three days in jail.

Once again, however, the father missed payments, but then in August 2011 – faced with what would otherwise be his imminent arrest – he paid off what now totalled $12,000 in arrears.

After that time, the father made no further voluntary payments at all. (It was conceded, however, that at one point he had lost his job as a chef and had been receiving Employment Insurance benefits. Some of the EI benefits had been subject to garnishment by the FRO.)

However, even after the father found another job, he was not particularly forthcoming with his payments. After more pressure from the FRO, he indicated that he was content to have his wages garnished at the 50% rate, and was willing to consent to paying $800 per month going-forward, with $300 in monthly ongoing support and $500 allocated towards the arrears.

Nonetheless, the FRO was not satisfied with this plan, as there was concern that the father would not follow up with or follow through on it. The FRO pointed out that in August of 2011, for example, when he was on the brink of being incarcerated, the father had agreed to have his wages garnished at 50%, but then he sat back and did nothing, waiting instead until the FRO took additional steps against him.

The FRO therefore applied to the court for a default order, requiring that required the father to pay arrears, and which allowed the FRO permission to apply for any future arrest warrants without giving the father notice (as was normally a requirement).

The court granted the FRO’s request.

It considered the father’s chequered history of defaulting on his support payments, the fact that he had been recalcitrant for years (i.e. since the original order in 2007), and the fact that he had been given many prior chances. The court wrote:

Having regard to the history of this matter, and the significant length of time over which the payor has had the opportunity to organize his financial affairs, the time has come for him to treat this obligation with the importance it deserves.

The payor is no longer entitled to put his own interests ahead of those who are entitled to child support.

It would appear that the tasks he is required to perform in his work are not so onerous that he could not give realistic consideration to supplementing his income through other forms of employment.

Furthermore, the payor may have to prevail upon other family members in an effort to assist him in paying the arrears. He can then make private arrangements as to an appropriate repayment schedule. Someone other than the Family Responsibility Office must now be either the banker or broker.

The father was ordered by the court to pay arrears of almost $10,000 by a specified date, failing which a warrant of committal could be issued to incarcerate him for 60 days. The order for $300 per month in ongoing support, with a 3-day jail term for each missed payment, was allowed to stand.

Ontario (Director, Family Responsibility Office) v. McLaughlin (2012), 2012 ONCJ 334  http://canlii.ca/t/frlmw

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.