The Family Responsibility and Support Arrears Enforcement Act empowers the Family Responsibility Office (also referred to as the “FRO”) to act as a support enforcement agency. Support orders issued by Ontario courts and support provisions within separation agreements that are registered will be enforced by the Family Responsibility Office. This helps ensure that support payments are recovered from payors and can be distributed to the recipient. When the debtor fails to pay support, one of the tools the Family Responsibility Office may use to collect support payments is to garnish a payor’s income or other funds. So, how do courts review a garnishment, and are there any defences the payor can raise?
In Schmidt v. Schmidt, the court had to consider whether garnishment proceedings were available to the applicant. A divorce order required the respondent to pay spousal support of $12,500 each month to the applicant. When the respondent reduced the amount of support paid, the applicant commenced garnishment proceedings to enforce the payment of support. Section 9(1) of the Family Responsibility and Support Arrears Enforcement Act (also referred to as the “FRSAEA”) provides that support orders made by Ontario courts shall be enforced by the Director, “and that amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed”. Subsection 10 of the Family Responsibility and Support Arrears Enforcement Act also states that an Ontario court that makes a support order shall also make a support deduction order. In this case, the court’s order for the payment of spousal support under the divorce rder qualified as a “support order” in accordance with the legislation. Importantly, section 6(7) of the Family Responsibility and Support Arrears Enforcement Act also provides that “no person other than the Director shall enforce a support order that is filed in the Director’s office”.
The challenge in this case was that there was no indication that the court complied with the direction to make a support deduction order regarding spousal support, when making the Divorce Order. As the judge noted, section 9(1) of the Family Responsibility and Support Arrears Enforcement Act was mandatory, and when read in conjunction with section 6(7), which concerned the jurisdiction to enforce a support order, the provisions meant that garnishment proceedings were not available to the applicant. Consequently, the court terminated the applicant’s garnishment proceeding.
Garnishment is an equitable remedy and there are limited defences that can be raised. In the matter of FRO FBO Chikwanda v. Bell, the Family Responsibility Office sought a court order that would permit the release of $38,203.40 to be paid towards child support arrears totalling $63,247.89. The funds were obtained through the garnishment of an inheritance that the respondent was otherwise entitled to. The respondent acknowledged that he owed child support arrears, however, he asked the court to exercise its equitable jurisdiction to reduce the amount of the inheritance garnishment to $25,000.
Rule 29 of the Family Law Rules governs garnishment proceedings and Rule 29(19) sets out the remedies that courts can consider at a garnishment hearing, which includes making an order dismissing the dispute, or changing how much is being garnished on account of a periodic payment order.
The court noted that there are limited defences available in garhnishment proceedings and looked to the decision in Ontario (Director of Support v. Custody Enforcement) v. Galea, where the court identified possible grounds giving rise to a defence, such as:
- at the time the notice of garnishment was served, the payor did not owe money to the creditor or owed a lesser amount than that claimed by the creditor.
- although a debt was owed it was not garnishable due to a legal exemption.
- the garnishee has a right of set-off against the debtor.
In this case, the respondent asked the court to exercise its discretion, alleging that he did not have any assets of significance, he lived paycheque to paycheque, and that he did not ignore his support obligations, but rather he paid what he could. The court, however, noted that the legislation and jurisprudence made it clear that child support is the right of the child and that parents are obligated to support their children. Moreover, child support is to be paid in accordance with the Child Support Guidelines.
Looking at the respondent’s arguments, the court determined that the respondent was not paying the amount of support that he should have been paying, and that his income had even increased, despite there not being an increase in the child support amount. Ultimately in this instance, there was a debt that was owed, and the children were being “deprived of the benefit of proper support from the respondent”. Accordingly, a sum of $38,203.40 was ordered to be released to the recipient parent.
In Wall v. Wall, the court dealt with a garnishment hearing after the respondent initiated garnishment proceedings against the applicant to enforce payment obligations that were not satisfied. The applicant filed a dispute against the proceedings arguing that the garnishment was premature because the amount of the equalization had yet to be determined.
The judge first explained that “garnishment is not another proceeding” but “a further step in the same proceeding, confined to enforcement of the relief obtained”. As such, it was not an opportunity to revisit the underlying merits of the dispute to attempt to “obtain an effective variation or expansion of the original substantive order”. This was confirmed in Snead v. Snead, where the court explained that the powers of the court at a garnishment hearing are limited and can be exercised within narrow confines. At a garnishment hearing, courts may not vary the underlying substantive order, and consequently there are only limited grounds to dispute a garnishment.
In this case, the applicant was limited to demonstrating that at the time the notice of garnishment was served he did not owe money to the respondent because “the alleged debts had been paid, or because the underlying substantive order had been suspended or found to be inoperative”. However, neither applied. Instead, the judge found that the applicant was trying to indirectly vary the earlier order by reducing his equalization payment with additional amounts he wished to be credited against his payment obligation, within a summary proceeding and without trial. The court determined that if the applicant wanted to pursue that relief, the appropriate remedy was to commence a new proceeding to vary the final order. In the meantime, however, the respondent was entitled to enforce the existing order by way of garnishment if the applicant did not meet his obligations.
For parties who have separated or divorced, obtaining a final court order or a completed separation agreement may not mean that all family law matters are completely resolved. A support recipient may need assistance obtaining support payments. For payors who fail to make support payments, the Family Responsibility Office can garnish bank accounts or wages, and there are limited defences to a garnishment.
Contact the Windsor Divorce Lawyers at Johnson Miller Family Lawyers for Advice on Child Support Obligations
When a party fails to adhere to their support obligations, the recipient party may seek to enforce such obligations by way of garnishment. If you are seeking to enforce a support order, or seek to vary an existing order due to a change in circumstances, the trusted family lawyers at Johnson Miller Family Lawyers are ready to help. To schedule a confidential consultation with a member of our team, call our office at 519.973.1500 or contact us online.