Tuesday, February 10, 2009

Imprisonment for Failure to Pay Support under a Temporary Order under FRSAEA: and Mootness

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"...[1] This is a somewhat unusual appeal. The issues between the appellant and respondent are no longer contentious. The appellant (the “Director”) all but concedes that the appeal should be dismissed and the order of Kent J. affirmed. However, the Director submits that there is uncertainty regarding the power to make an order directing imprisonment upon default in payment under the terms of a temporary order made pursuant to s. 41(14) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (“FRSAEA”). The Director asks this court to confirm the existence of the power to make that order where circumstances warrant. Additionally, the Director submits that, assuming the power to make the order exists, this court should identify the steps judges should take to ensure that the proposed subject of the committal order is treated fairly when the order is made.


(1) The statutory power to make a temporary order for support that includes a term directing imprisonment upon default in payment.

[26] The constraints on the use of imprisonment where the payor fails to comply with an order made at the end of a default proceeding have full application to non-compliance with temporary orders made in those proceedings. At least two additional factors suggest further caution. First, presumably the adjournment of the hearing indicates that the court is satisfied that the full merits of the default hearing should be addressed at a subsequent time. Courts should be hesitant to order the potential imprisonment of the payor absent the full inquiry into the merits of the proceedings. Second, where the matter is adjourned, presumably the payor will be back before the court within a relatively short time. Any failure to comply with the temporary order may well be more appropriately addressed when the default proceeding is back before the court.[3]

(2) The appropriate procedure where the court proposes to impose a committal order

[27] Counsel advise that the payor is often unrepresented in default hearings. We will assume that the payor is unrepresented in considering the steps that a court should take to ensure that a payor is treated fairly before making a committal order as a term of a temporary order under s. 41(14). Counsel agree that, before making a committal order, the court must be satisfied that the payor is aware of the nature and effect of the proposed committal order and is given a fair opportunity to speak to the appropriateness of the imposition of a committal order in the circumstances.

[28] Counsel for the respondent favours a more formal process involving the taking of evidence under oath and giving the payor an opportunity to call evidence and cross-examine witnesses. Counsel for the Director submits that the level of formality suggested by counsel for the respondent is neither necessary, nor appropriate. He makes the point that temporary orders are made in the context of the adjournment of the default hearing. Counsel for the Director suggests, correctly in our view, that the formalities associated with a full hearing on the merits are not necessary when settling the terms of an adjournment.

[29] In our view, the courts that conduct default hearings are better positioned than this court to appreciate and address the demands of fairness in any given circumstance. However, a few broad observations may be helpful.

[30] The liberty of a payor who is potentially the subject of a committal order is put in jeopardy if the order is made. At a minimum, fairness in the context of a proposed order that could result in imprisonment requires that:

• the court explain to the payor the nature of the proposed committal order and the effect it could have on the payor’s liberty;

• the court explain to the payor why it is considering making the committal order; and

• the payor be given an opportunity to respond to the reasons offered by the court and to advise the court of any additional facts that may be relevant to the court’s decision to make the order.

[31] It is best left to the wisdom of individual judges in individual cases to decide exactly how to ensure that the payor is given the necessary information and the opportunity to put his or her position forward. We do, however, accept that the context in which the proposed order is being considered must be borne in mind in deciding what steps are necessary to ensure that the payor is treated fairly. Where the order in issue is a term of an adjournment sought by the payor, it would not be helpful to impose a procedural regime that would effectively result in adjournments to gather further information so that the terms of the adjournment could be settled. The common sense of the courts conducting these hearings will no doubt prevail.

[32] We also think that if the court concludes that a committal order is a proper term of a temporary order, the court should make the adjournment of the default proceedings as short as the circumstances reasonably permit, thereby hopefully reducing the risk of non-compliance..."

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