Yesterday I wrote about the authority of the Family Responsibility Office (the FRO) in enforcing family law support obligations. Today I’d like to talk about what happens when the FRO seeks jail time under the Family Responsibility and Support Arrears Enforcement Act.*

The Ontario Court of Appeal recently ruled in Fischer v. Ontario (Family Responsibility Office)+ that imprisonment for non-payment of family law support orders is the last resort. The court indicated that “Something more than non-payment is required. The payor’s conduct must demonstrate a wilful and deliberate  disregard for the obligation to comply with court orders.”

The liberty of a payor is potentially put in jeopardy when the director of the FRO seeks a committal order (jail time). Therefore, fairness in the context of a proposed committal order 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.

Of course, the steps listed above are only broad-stroke guidelines. As circumstances in individual cases vary, a rigid procedural regime wouldn’t be helpful. Counsels for the payors must be vigilant in ensuring that the payor is treated fairly, and that fairness is observed.

*S.O. 1996, c. 31, s. 41(10)

+(2009), 92 O.R. (3d)72, see also Morrison v. Allen (1988), 62 O.R. (2d) 790, 11 R.F.L. (3d) 225 (Div. Ct.), at para. 11, affg on this point Allen v. Morrison (1986), 56 O.R. (2d) 671; Ontario (Family Responsibility Office) v. Beliv (2006), R.F.L. (6th) 127 (S.C.J.) at para 29.