Recent cases: Incarceration for non-payment of support
Two recent cases – one dealing with child support and the other with spousal support – explore the appropriateness of incarcerating a payor who is in considerable arrears.
In Ontario (Family Responsibility Office v Arruda, 2014 ONCJ 455, Mr Arruda is almost $200,000 in arrears on his child support payments. FRO sought an order requiring him to pay the arrears in full or be incarcerated for 150 days (or until be paid the full arrears) and an order that he be incarcerated any time he failed to meet his ongoing child support obligations. In the alternative, FRO sought an order that Mr. Arruda make an immediate lump sum payment of $50,000 and continuing lump sum payments until the arrears were paid in full as well as an order for the payment of ongoing support, with incarceration to follow in the event of any default.
Mr. Arruda argued that he did not have the capacity to pay because his ongoing emotional distress at the end of his marriage in 2008 had led to his inability to work and to maintain his business.
However, Mr. Arruda had a history of not complying with the court process, having consistently failed to comply with consent disclosure orders in 2008, 2010 and earlier in 2014, leading to a court decision in January 2014 to strike his motion to vary child support and to prohibit him from bringing any further motions.
Further, despite Mr. Arruda’s claims of poverty, within 24 hours of being incarcerated for non-payment of arrears in April 2014, he had produced the required sum of almost $50,000 and was released from jail. A few months later, when a judge gave Mr. Arruda a short break in the court proceedings (approximately 2 hours) to produce $5,000 if he wanted the judge to grant his request for an adjournment, Mr. Arruda was able to provide this money.
In the hearing leading to this decision, Justice Spence attempted to get Mr. Arruda to answer some basic questions about how he had been able to raise such large sums of money in such a short amount of time. Mr. Arruda was unable to provide meaningful answers, which led Justice Spence to say:
On the evidence before me, it is impossible to conclude either that the payor has “no control” over his circumstances or that he has been rendered “totally without assets or income with which to meet his obligations.[which are considered to be the only valid reasons for non-payment].”
In making his order for incarceration (unless and until Mr. Arruda made the lump sum payments requested by the FRO and made his ongoing support payments), Justice Spence goes on to say:
It simply beggars belief that the foregoing [Mr. Arruda’s earlier lump sum payments] could occur in the manner that the payor outlined at this trial. Given that the payor’s explanations are clearly not credible, then the only reasonable conclusion that this court can reach is that the payor has quick and easy access to large sums of money . . . No other conclusion makes sense on the evidence before the court. And because of that, he has a demonstrated ability to make support payments, particularly when he is facing the prospect of immediate imprisonment.
In my view, the payor has been playing games with his support obligations and with the support enforcement system for far too long. He has managed to find ways to delay and obfuscate such that there have been many court attendances to deal with the support enforcement issue. And all the while, his children and his former wife have gone without the support which they have been found to be entitled by prior court orders.
Ontario (Family Responsibility Office) v Van Westerop 2014 ONSC 5443 is a case in which the payor is almost $900,000 ($899,626.20 to be exact) in arrears in his spousal support payments.
The support order was made in 2001 after the husband’s pleadings had been struck from the record because he had failed to provide the financial disclosure ordered by the court. In 2010, the FRO began a default hearing to enforce the 2001 order. This hearing was adjourned at least 10 times over the next two years. During this time, the payor brought a motion to change, which was eventually stayed because he had repeatedly failed to pay a number of costs orders.
Eventually, in 2013, the FRO and the payor consented to an order that required him to pay all costs orders, all arrears and all ongoing spousal support. He had until January 2014 (7 months) in which to make these payments or seek other remedies, but did nothing until December 2013, when he brought a motion for various forms of relief, including a variation of the support order. This motion was dismissed.
By August, 2014, the payor appeared in response to the FRO’s motion for a Warrant of Committal, but the case was adjourned because the court list was too long. The motion was finally heard in September 2014, at which time Platana J. said:
Mr. Van Westerop presents as a payor who will attempt to use any reason, or give any rationale, to avoid having to make support payments in the amount he acknowledged in June 2013, and presumably based on the order, then had the ability to pay. I find no material change in his circumstances since the June 2013 order. . . . I order that the Director’s request for a Warrant of Committal is granted. Mr. Westerop shall be incarcerated for a period of 90 days or until the outstanding default is cured.