Consequences for defaulting on support orders, including credit bureau reporting and garnishment
Typically, an order for support, whether that be child or spousal support, will be sent to the Family Responsibility Office through a Support Deduction Order, where the support payments will be enforced. The question becomes, what powers does FRO have in their arsenal to enforce support orders?
The Director of FRO can force employers, or other income sources of the payor, to remit funds on behalf of the payor (i.e. up to 50% of net receipt after deducting income taxes). This is found at subsection 20(2) & 23(1) of the Family Responsibility and Support Arrears Enforcement Act (FRSAEA):
The Director may serve a notice of a support deduction order to each income source from whom the Director is seeking payment, and may serve new notices when the amount to be paid under a support order changes or arrears are owing.
The total amount deducted by an income source and paid to the Director under a support deduction order shall not exceed 50 per cent of the net amount owed by the income source to the payor.
While only 50% of income sources can be taken above, 100% of an income tax refund may be deducted for support purposes, as found at subsection 23(3):
Up to 100 per cent of a payor’s income tax refund or other lump sum payment that is attachable under the Family Orders and Agreements Enforcement Assistance Act (Canada) may be deducted and paid to the Director under a support deduction order.
Garnishment is available under rule 29 of the Family Law Rules, which, while inclusive of the ability to garnish wages, can include the garnishment of things like bank accounts and even pensions. For instance, in Campbell v Wentzell, the father served a notice of garnishment for $53,974.02 on the mother’s bank account for a costs award. The mother’s bank, Scotiabank, then froze her account. However, this was lifted because the mother had children to support, and the children’s interests took priority over the father’s garnishment interests:
The father subsequently served a notice of garnishment for $53,974.02 on Scotiabank which effectively froze the mother's bank account. The garnishment has been stayed since February 7, 2018 by court order.
The mother requests that the garnishment be suspended until she obtains employment. She submits that by garnishing her bank account the father is effectively garnishing the child support and the Canada Child Benefit and that she is left without monies to support the child or to pay for rent, pay bills or buy groceries.
Under section 41 of the FRSAEA, the Director of FRO can bring a “default hearing” against the payor, requiring the payor to provide a financial statement and proof of income and to appear before the court. Failing which, subsection 7 states that the court can order that the payor be imprisoned for the purpose of having the payor attend court:
[I]f the payor fails to file the financial statement or to appear as the notice under subsection (1) or (2) requires, the court may issue a warrant for the payor’s arrest for the purpose of bringing him or her before the court.
At the default hearing, the court can make the following orders, including the very extraordinary order such as further imprisonment:
The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor,
(a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears;
(b) discharge the arrears in full by a specified date;
(c) comply with the order to the extent of the payor’s ability to pay;
(d) make a motion to change the support order;
(e) provide security in such form as the court directs for the arrears and subsequent payment;
(f) report periodically to the court, the Director or a person specified in the order;
(g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur;
(h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and
(i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner.
Another important note of this section is that the court can effectively make many of the same orders against another party, who sheltered income or assets for the payor:
If the court is satisfied that a person who was made a party to the hearing under subsection (5) sheltered assets or income of the payor such that enforcement of the support order against the payor has been frustrated, the court may, having regard to all the circumstances, including the purpose and effect of the dealings and the benefit or expected benefit therefrom to the payor, make any order against the person that it may make against the payor under clauses (10) (a), (b), (c), (e), (f) and (g) and subsection (19), to the extent of the value of the sheltered assets or income and, for the purpose, in clause (10) (c).
Under rule 28 of the Family Law Rules, a party, or the Director of FRO, can obtain a writ of seizure and sale against the payor’s assets, such as their house, car, or boat:
The clerk shall issue a writ of seizure and sale (Form 28) if a recipient files,
(a) a request for a writ of seizure and sale (Form 28A); and
(b) a statement of money owed (subrules 26 (5) and (6)).
The Director, under section 42 of the FRSAEA, can put a charge on real property owned by the payor, giving them the ability to force the sale of the property much in the same way a bank would on a defaulting mortgage:
A support order may be registered in the proper land registry office against the payor’s land and on registration the obligation under the order becomes a charge on the property. 1996, c. 31, s. 42 (1).
A charge created by subsection (1) may be enforced by sale of the property against which it is registered in the same manner as a sale to realize on a mortgage.
Additionally, the Director can put a charge on the personal property of the payor, under section 43 of the FRSAEA:
Arrears owing from time to time under a support order are, upon registration by the Director or the recipient with the registrar under the Personal Property Security Act of a notice claiming a lien and charge under this section, a lien and charge on any interest in all the personal property in Ontario owned or held at the time of registration or acquired afterwards by the payor.
The Director can also restrain the payor from disposing of assets, under section 48 of the FRSAEA:
A court, including the Ontario Court of Justice, may make an order restraining the disposition or wasting of assets that may hinder or defeat the enforcement of a support order or support deduction order.
Finally, the Direct has the power to report the support order default to a credit bureau (section 47 of the FRSAEA), suspend a payor’s driver’s license (section 34 of the FRSAEA) and/or passport under federal enforcement legislation. While the former remedies were used as a direct means to obtain payment, these remedies appear to indirectly force the payor into payment—provided the payor wants to drive again or utilize their credit.
Obvious takeaways? FRO has extensive measures when it comes to the enforcement of support orders. These include things like garnishment, a writ of seizure and sale, putting a charge on the real or personal property of the payor, credit bureau reporting and the suspending of government privileges such as driver’s licenses and passports. If the payor has the ability to pay and there is an existing support deduction order that the payor does not intend to challenge, it would probably be best to pay support pursuant to the order, or at the very least, cooperate and communicate with FRO.