The Intention of the Payor is the Key Factor in Determining if Non-Payment of Support Means Jail Time.
This is the case of Ontario (Family Responsibility Office) v. Waller, 2015 ONCJ 656. You can read the decision here. here.
In this decision, the Father owed child support arrears to two different Mothers. For one Mother, the Father’s imputed income was $70 000.00. In the Order regarding the second Mother, the Father’s imputed income was $58 000.00. Between both Mothers, the Father fell into arrears by over $89 000.00. This reported case arises from an Enforcement Hearing. The Family Responsibility Office wanted the Father put in jail.
When the Family Responsibility Office commenced enforcement proceedings, the matter was adjourned as long as the Father satisfied certain conditions. The Father failed, however. Specifically:
- He failed to pay a temporary order for monthly child support even when the amount was reduced;
- The Father failed to provide financial disclosure ordered;
- The Father failed to bring Motions to Change the support Orders that were the subject of these Enforcement Proceedings;
- He was granted over 4 adjournments and
- He failed to attend court one day.
The Father finally responded to the proceedings. He provided Financial Disclosure from his contracting business, including past income tax returns. It showed that he made only $35 000.00 in past years. The Father said that he was having problems collecting debts from past customers.
The Honourable Justice Sherr stated that a child support payor (in this case, the Father) must meet a two-pronged test to stop enforcement procedures. They are:
The payor is unable to pay due to factors beyond his control. Even if something bad happens (job loss) the payor must show a positive effort to resolve the problem (evidence of a job search):
The payor must show good faith. Specifically that he or she:
- Accepts his or her responsibilities;
- Places the child’s interests over his or her own and
- Has provided frank disclosure to the court.
For the F.R.O. to successfully argue that the payor should be imprisoned, it is not enough to show that the payor failed to pay. The Family Responsibility Office must show that the payor is willfully refusing to pay.
In this case, the Father showed bad faith because:
- He failed to pay virtually any support
- He leases a Mercedes-Benz
- His Gross Sales is over $500 000 per year.
- He did not bring source materials showing that the business expenses were not personal expenses.
- The Father knew the consequences of failure to comply. He was represented by counsel
- His past conduct shows a desire to delay proceedings.
The Honourable Justice S.B. Sherr held as follows;
The Father will be committed to jail immediately for 180 days or until he pays $5000 to each Mother (90 days per missed payment).
The payor shall pay the sum of $5,000 to each Mother towards the support arrears on both May 1st and November 1st of each year, until they are repaid. Again, 90 days for each missed payment up until a maximum of 180 days.
The original support Orders are reinstated. The Father was to be committed to jail for 3 days for each monthly payment missed.
The Father can get out jail only by paying the full amount of arrears (now over $89 000.00). Paying the missed payment that triggered the jail time is insufficient.