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by Daniel Gloade on June 21, 2013

In Ontario (Family Responsibility Office) v. De Francesco, 2012 ONCJ 819 Justice C. J. Jones presided over a default hearing.  The support payor was ordered to pay child and spousal support pursuant to a 2005 court order.

The payor lost his job in 2008 due to poor performance.  He used is severance package to pay the lawyers representing him in the 2005 proceedings.  He assumed that he would find another job soon.  He was wrong.  He fell behind in his payments a few months later.

The judge held that it would have been better if the payor held on to the money to insure he will maintain his future support payments.  This mistake, however, was not a deliberate attempt to avoid support payments and wasn’t used against him.

The payor commenced seeking a psychiatrist in 2010.  The payor’s psychiatrist testified, in person, that the payor was disabled by severe, treatment-resistant depression.

After the F.R.O. commenced the default proceedings, the payor brought a motion to change the 2005 Order.  In essence, he wanted to cease paying child support on the grounds that he was disabled and unemployable.  The motions court judge denied the motion, siting the rejection of the payor’s disability support payments application and the poor quality of the written evidence from the psychiatrist.

After the hearing for the motion to change, but before the default hearing, the payor’s application for disability support payments was approved.  The psychiatrist testifying admitted to the poor quality of the reports she submitted to the disability insurer and the motions court judge.

In the default proceeding, it is presumed that the support payor is able to pay the ordered support.  The payor can rebut this presumption, however, by showing that he is unable to pay in spite of his or her diligent efforts.

Counsel for the F.R.O. argued that the reasonableness of the payor’s efforts was already assessed by the motions court judge.  The judge at the default hearing was therefore bound by the motions court judge’s ruling that the payor failed to prove an inability to pay.

Justice C.J. Jones held, however, that his inquiry as a default hearing judge regarding the payor’s ability to pay is independent of the motions court judge’s inquiry as to whether there has been a material change in circumstances.  The payor, through better evidence, had proved his inability to pay.  The F.R.O. therefore could no longer enforce the 2005 support order.


Failure on a motion to change the original court order does not decide whether enforcing the support order would be unfair.

Although the support payor‘s priority is to obey support orders, he or she will not be punished for reasonable financial decisions that ultimately impair the payor’s ability to make future support payments. 

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