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Child support is one of the most common topics in family law, but what what happens when a parent refuses to pay? That was the situation in a recent case in the Ontario Superior Court of Justice in which a father "effectively disappeared" and racked up nearly $26,000 in child support arrears over a two-year period, leaving the mother and the court to search for creative options in enforcing payment.
The case involved a separated couple who are the parents of three children. In late 2022, the mother commenced court proceedings against the father in which she requested child support and the sale of the couple's matrimonial home.
In early 2024, the father was ordered to pay child support of $1,020 per month based on an income of approximately $52,000. Then in September 2024, the court ordered the sale of the home, requiring that the proceeds be held in trust, something that is not unusual pending the resolution of all issues arising from separation.
Fast-forward to last month, when the father, having refused to make payments over nearly two years, owed arrears of approximately $26,000.
The mother asked the court to: 1) pay the support arrears to her from the father's share of the home sale proceeds, $79,000 of which were still being held in trust by the real estate lawyer; and 2) pay the balance of the father's share of the home sale proceeds to the Family Responsibility Office (the "FRO").
The FRO is a provincial government agency that enforces support obligations for the benefit of Ontario support recipients. Pursuant to Ontario legislation called the Family Responsibility and Support Arrears Enforcement Act ("FRSAEA"), the FRO has multiple enforcement options available in the event a support payor fails to pay court-ordered support. Garnishing wages, suspending a payor's driver's license and passport and, in the most egregious cases, jail time, are all options the office can pursue.
The mother's request in this case was to have the father's share of the home sale proceeds held by the FRO. In turn, the FRO would pay future monthly child support payments to the mother from those funds.
The judge had little difficulty ordering that the arrears be paid from the proceeds, noting that the father was "clearly out of compliance with the support order" and had "effectively disappeared."
But the mother's second request, that the balance of the funds be held by the FRO, was not as easy to address.
Justice Jennifer Breithaupt Smith noted that there was no precedent for such a request and thatthe FRSAEA did not offer the option as an enforcement mechanism. While she considered an alternative — converting the future obligations into a lump sum payable immediately — at first it, too, proved problematic because the father had not been given notice of such a claim.
Ultimately, at a second hearing, the FRO confirmed it could hold funds and disburse them monthly to the mother. The legal issue then shifted to whether the court had the jurisdiction to make that order.
For the judge, payment of the sale proceeds to the FRO was akin to a form of security for a future child support obligation. Justice Breithaupt Smith considered a 2014 case from the Court of Appeal for Ontario which confirmed that, under the federal Divorce Act, an order compelling a payor to obtain life insurance to secure support was well within the court's power. "(It is) generally accepted that as part of its discretionary power under these sections, a court may impose terms aimed at securing payment of a support order," the judge said in her decision.
Payment of the balance of father's home sale proceeds to the FRO was exactly that: security for the future support payments owed to the mother.
In the result, all support arrears were paid from the father's portion of the sale proceeds and the remaining funds were to be transferred to the FRO, which will be used to satisfy ongoing monthly payments of $1,020 until depleted.
Justice Breithaupt Smith's ruling underscores both the difficulties courts face when enforcing child support against a parent who refuses to pay, but also their willingness to get creative in pursuing remedies that ensure a parent receives the support to which their children are entitled.
Originally published by Financial Post
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