The Director, Family Responsibility Office For the benefit of N. S. (Applicant) AND W.G. (Respondent)

Facts

The Director of the Family Responsibility Office (hereinafter, “FRO”), brought a default proceeding against the Father for failure to honour the Child Support Order of the Honourable Justice Sheila O’Connell.  The Father was in default of child support arrears in the amount of $58,993.00.  He missed over 86 support payments since 2010.

The Father’s primarily explanation for failing to pay child support in accordance with the Order was that he had spent much of that time in jail for a highly publicized fraud conviction.  He argued that he was unemployable do to the public nature of the crime he had committed, consequently, he was unable to pay support. He further argued, that he had no other sources of income to pay his child support obligations.

Analysis

According to section 41(9) of the Family Responsibility and Support Arrears Enforcement Act, the onus is on the payor to prove that he/she has an inability to pay.  The payor must provide a “valid reason” for an inability to pay support arrears or subsequent payments.

Justice Kurz found that the Father did have the ability to pay child support.  Specifically, Justice Kurz relied on the fact that the Father was the recipient of a trust fund that had been set up for him by his grandfather.  He also found that the Father was able to earn an income, but had chosen not to work. Justice Kurz relied on the fact that the Father did not call any evidence as to applications for employment, provide any list of rejected applications for employment, or call an expert witness to discuss his employability.  As a result, Justice Kurz found that the Father was healthy and employable.

Section 41(10) of the Family Responsibility and Support Arrears Enforcement Act, the court has a broad palate of remedies available when it finds that the payor has failed  to pay support without a valid reason, one of which includes imprisonment for up to 180 days or until the arrears are paid.

The Director suggested that the Father be incarcerated for 180 days in accordance with section 41(10) of the Family Responsibility and Support Arrears Enforcement Act. Justice Kurz advised that, “jail sentences are intended to compel compliance, not to punish the defaulting payor.  Jail sentences are to be used as a last resort”. That is, incarceration does not eliminate a person’s obligation to pay support.  He further explained that the object is not to publish the defaulter, but rather use incarceration as a means to encourage him to make the payments ordered. As such, the Court should not impose the penalty of incarceration for first time defaulters.

Ultimately, Justice Kurz found that “this is a textbook case of a payor arranging his affairs in order to avoid paying the support that he has been found to be capable of paying”. Justice Kurz continued by stating that the Father “has carried the metaphorical keys of his prion in his pocket.  If he is incarcerated, he has, for reasons of his own, chosen to lock himself in”. Consequently, Justice Kurz ordered the Father, to be incarcerated for 90 days or until the arrears had been paid, whichever came sooner.  Finally, Justice Kurz made a second order that in default of the Father paying the ongoing support on a monthly basis, he should be committed to jail for three days for each and every default.