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Proof of Bad Faith in Family Responsibility Office Default Hearings

by Daniel Gloade on August 29, 2016

The Family Responsibility Office (F.R.O.) is a government agency that enforces child and spousal support payments.  If the Payor fails to make payments, the F.R.O can go to court and ask the court to inflict penalties on the delinquent Payor.  This is called a Default Hearing.

In the Default Hearing, a judge should not re-examine the child support orders themselves, but can create or change a repayment schedule or penalties.

Payors must show a valid reason as to why they have not paid the ordered support.  A valid reason is defined as something that was beyond the payor’s ability to either avoid or recover from and would affect his or her ability to pay support.  

In Ontario (Family Responsibility Office) v. Levy, 2016 ONCJ 474 (CanLII) (You can read the decision here) the Family Responsibility Office brought a Default Proceeding.  They requested monthly payments set at a certain and a provision that the Payor would spend 3 days in jail for every missed payment.

The child support payable was based on an order dated 2010.  The Payor did not participate in the proceedings had an income imputed to him of $60 000.00.

The Payor then brought several motions to change this Order but would fail to attend court dates for his own proceedings.   The Father also failed to pay

  1. The child support ordered,
  2. The arrears payment ordered
  3. Costs awarded
  4. An amount for security for costs that was ordered

The Payor claims that the court ordered child support was based on an imputed income that was much higher than he earned.  He was unable to pay the costs ordered and the amounts accumulated exponentially.  He states that the default provisions would, essentially, keep him in jail.

The Payor argued that:

  1. He was on social assistance most years, and earned a minimum income
  2. He had to assist his invalid mother;
  3. He lost his driver’s licence, and this impaired his ability to earn and income.

Justice Sherr had some sympathy for the Payor, but there were other factors that showed bad faith.

The Father:

  1. Had a record of not paying support unless threatened by the court, even when he had the ability to pay;
  2. Failed to produce court-ordered documents;
  3. Had incomplete and inaccurate records arising from his self-employment when the self-employed have a higher obligation to have accurate records and source documents;
  4. Did not provide materials showing that he applied for other jobs;
  5. Did not provide medical documents showing an inability to work;
  6. Continued with his own business even when it was clear that it was unprofitable;
  7. The Payor claimed that he had significant monthly expenses and that he paid $38 000 in legal fees but there was no evidence as to how he paid for it;
  8. The Payor claimed that he had loans from family and friends, but there was no evidence of it.

Apart from reducing the monthly amounts, Justice Sherr granted the order requested by the F.R.O.

This case shows the importance of showing full and candid disclosure early in the case.  Child support obligations don’t go away because you don’t want to face your financial situation.

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