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Deadbeat parents risk jail, court says

Appeal court rules that temporary support orders cannot be ignored, even before a full court hearing

Toronto Star, Tracey Tyler Legal, Affairs Reporter, December 09, 2008

Debtors' prisons may generally be a thing of the past, but not when it comes to parents who stubbornly refuse to pay child support.

The Ontario Court of Appeal, in a 3-0 ruling, said judges have the power to order parents jailed for failing to comply with temporary support orders. Such support orders, made after someone has fallen behind in payments, but before a full court hearing into their ability to pay, are common.

In recent years, Ontario's Family Responsibility Office has taken to asking judges to include clauses allowing for imprisonment in the event of non-compliance, said Michael Marra, a Guelph lawyer representing Andrew Fischer, whose case gave rise to the appeal.

In its ruling last Friday, meant to provide guidance to courts across Ontario, a three-judge appeal panel said imprisonment should be used only as a last resort.

Nonpayment alone doesn't justify throwing parents behind bars, the court said, adding there must also be evidence a parent has shown a "wilful and deliberate disregard" for the court order.

An imprisonment clause is meant to "induce compliance," not to punish a parent for failing to pay, Justices David Doherty, Eleanore Cronk and Russell Juriansz said in their decision. "The prospect of imprisonment hopefully focuses the payor's mind on the importance of making the required payments."

The Family Responsibility Office has been under fire for failing to reduce the amount of child support arrears in Ontario, currently around $1.45 billion, up slightly from five years ago. About 69 per cent of parents registered with the office are behind in payments. In 2006, Ombudsman Andre Marin said the office was "lackadaisical."

Fischer had more than 50 per cent of his wages going to child support when he fell behind in payments in 2007. He'd resolved his differences with the Family Support Office by the time his case reached the appeal court, but Marra and Mark Alchuk, a lawyer for the province, asked the court to hear the case anyway.

They wanted it to resolve the question of whether judges have the power to include imprisonment for up to 180 days in the terms of a temporary support order.

As well, they asked the court to lay out steps judges should follow to ensure parents are treated fairly when these orders are made - often in busy courts, against parents who are unrepresented by lawyers.

Fischer was without a lawyer when a judge issued a temporary support order with an imprisonment clause; he also wasn't permitted to address the court beforehand. But in future, parents must be given an opportunity to tell their side of the story, the appeal court said.

Earlier this year, a Superior Court judge said it wouldn't be appropriate to include a clause allowing for Fischer's imprisonment because there was a "real possibility" he could be jailed before a full hearing, without a lawyer having a chance to make submissions on his behalf.