FAILURE TO PAY CHILD SUPPORT CAN LAND YOU A JAIL SENTENCE
Those lacking a good reason not to comply with order may be surprised by the penalty
In 2012, Statistics Canada estimated that 45 per cent of child and spousal support orders were in arrears, meaning that there was a balance of more than twice the monthly payment owing.
What happens when a payor can pay but chooses not to do so?
In Ontario, as in many other provinces, the Family Responsibility and Support Arrears Enforcement Act (“FRSAEA”) is in place and has existed for many years. The legislation creates the Family Responsibility Office (“FRO”) — an office which enforces court orders for support and pays the amounts collected to the people to whom they are owed.
Earlier this year, Justice Marvin Kurz, then of the Ontario Court of Justice, reviewed the law on the most draconian enforcement mechanism — jail — before ordering that Walter Garrick serve jail time for his arrears of child support.
As recounted in the judge’s ruling, Garrick was a fraudster who had spent time in jail for his misdeeds as recently as 2014. He had been schooled at Columbia University, had access to a trust fund and got financial help from his parents. In earlier proceedings before the Ontario Court of Justice, he gave evidence that he had a penthouse apartment in New York City.
When FRO brought Garrick’s matter before Justice Kurz in July, 2017, Garrick was $55,000 in arrears of child support. He claimed that he was unable to pay as he said he had spent 524 days in jail and more than 1,000 days under house arrest on fraud-related matters.
The FRSAEA provides a myriad of ways that FRO can enforce support which is in default: it can require that employers remit up to 50 per cent of a payor’s employment income, place writs of execution on a payor’s property, seize tax refunds, garnish bank accounts and suspend driver’s licences and passports.
When those actions do not result in the support being paid, FRO will, on the support recipient’s behalf, ask the court to order jail time.
Under the FRSAEA, FRO must pursue the most severe remedies at a default hearing. At this hearing, the defaulting payor is presumed to have the ability to pay the support in arrears or must show a valid reason why he cannot.
A “valid reason” is one over which the payor has no control: disabling illnesses or involuntary unemployment are the usual reasons.
But the court is also obliged to look further: the payor must show that he has accepted his support responsibility and has placed the child’s interest over his own. The court expects evidence of reasonable, diligent and legitimate efforts to comply with the support order, including whether the payor has ever paid child support voluntarily. In Garrick’s case, the judge found that he had not, and called him “the author of his own misfortune.”
Garrick’s position on his default hearing, according to the ruling, was simple: his prior jail time for fraud made him entirely unemployable.
Unfortunately for Garrick, the judge said, he had sung that song at earlier court appearances.
The judge was clear that he would only hear evidence about Garrick’s circumstances after the support order was originally made. At the hearing, Garrick provided no list of employment applications, no rejection letters, and no evidence from an expert in the employment field to suggest that he was unemployable. In fact, even Garrick’s own testimony was that he had not applied for work since the late 2000s.
While Garrick’s father testified about expenses for the child the family had paid, and even offered to pay for private school education, Justice Kurz observed that while “Mr. Garrick’s family has no obligation to meet his child support obligations … and can spend their money on (the child’ as they see fit … (it appeared) … that Mr. Garrick (had) control over those expenditures and would be able to turn on the tap if he were so inclined.”
The court also found Garrick’s financial disclosure wanting. This, too, contributed to the finding that there was no valid reason why he had not paid support.
Ultimately, the judge considered the options available to him. The FRSAEA no longer requires the court to first consider alternatives to jail, but as jail sentences are intended to compel compliance, he acknowledged jail was a “last resort.”
Garrick pleaded with Justice Kurz not to send him to jail, citing his frightening experiences while previously incarcerated. His Honour had little time for these submissions, concluding: “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. Mr. Garrick has carried the metaphorical keys of his prison in his pocket. If he is incarcerated, he has, for reasons of his own, chosen to lock himself in.”
In noting that Garrick had paid less than 10 per cent of the amount that he should have paid (and only then, with earlier threats of incarceration), Justice Kurz sentenced Mr. Garrick to 90 days in jail unless he paid the arrears of $55,000. The judge then added that if the ongoing support was not paid, Garrick would serve a further three days for each and every default.
To the surprise of many payors, debtor’s prison is alive and well in Ontario.