Failing to pay court-ordered child support or spousal support can have serious legal consequences in Ontario. While many people associate unpaid support with wage garnishment or driver’s licence suspension, in certain circumstances, a court may also order imprisonment for non-payment of support arrears.
However, going to jail for unpaid child or spousal support in Ontario is not automatic. Imprisonment is generally considered a last resort, particularly where a person has demonstrated a wilful and deliberate disregard for their support obligations despite having the ability to pay.
An Ontario court decision examined default hearings and the circumstances in which a jail committal order may be appropriate to enforce outstanding spousal support and child support arrears.
The case provides important guidance about financial disclosure, inability to pay, and how Ontario courts approach support enforcement.
Key Takeaways: Imprisonment for Unpaid Support in Ontario
- Imprisonment is possible but not automatic. Ontario courts may order jail time for unpaid support arrears in serious circumstances involving unjustified non-payment.
- Default hearings examine ability to pay. A person who has fallen behind on support may be required to explain the default and provide financial disclosure.
- Financial hardship may be a valid reason for non-payment. However, the payor must provide credible evidence demonstrating an inability to pay.
- The Family Responsibility Office (FRO) has several enforcement powers. These include garnishment, licence suspension, and other measures intended to collect outstanding support.
- Imprisonment does not erase support arrears. Outstanding obligations generally remain enforceable even after a period of imprisonment.
- Legal guidance may help address outstanding support. Parents and former spouses experiencing financial changes should consider whether a support order can be modified.
Can You Go to Jail for Not Paying Child Support in Ontario?
In some cases, yes. Under Section 41 of Ontario’s Family Responsibility and Support Arrears Enforcement Act, 1996, a court may order imprisonment where a support payor has failed to meet their financial obligations without valid reasons.
The legislation permits imprisonment for a period of up to 180 days in certain default proceedings.
However, imprisonment is not intended simply to punish someone for owing child or spousal support. Its purpose is to encourage compliance with an enforceable support obligation.
Courts generally consider whether the payor has the ability to pay, whether non-payment has been deliberate, and whether other enforcement measures have been effective.
A person who genuinely lacks the financial means to satisfy a support obligation may be treated differently from someone who is deliberately concealing assets or refusing to comply.
Ontario Court Case Study: More Than $307,000 in Unpaid Support Arrears
In a 2018 Ontario decision, Ontario (Director, Family Responsibility Office) v. Mariani, 2018 ONCJ 506, the court considered whether imprisonment was an appropriate response to a longstanding failure to pay child and spousal support.
A History of the Parties
The parties divorced in 2008 after approximately 21 years of marriage. They had two children who were adults by the time of the hearing.
The Director of the Family Responsibility Office was seeking enforcement of arrears stemming from six court orders. These included outstanding child support payments dating back to when the children were minors, accrued and outstanding spousal support, and unpaid court costs.
The total amount sought was $307,372.74, consisting of:
- Support arrears of $271,224.18.
- Unpaid court costs of $33,732.72.
- Interest of $15.84.
- Administrative fees of $2,400.
The ex-husband claimed that he did not have the ability to comply with the orders or pay the outstanding arrears.
A default hearing was scheduled after many months of communication between the parties, delays, and failures by the ex-husband to appear.
What Is a Default Hearing for Unpaid Support in Ontario?
A default hearing occurs in family court before a judge. Its purpose is for a support payor to explain why they have fallen behind on their payments.
The amount of arrears owing and the payor’s ability to pay are central issues at the hearing.
Default hearings are governed by Section 41 of the Family Responsibility and Support Arrears Enforcement Act and Rule 30 of Ontario’s Family Law Rules.
The Director of the FRO can initiate default proceedings where a filed support order is not being followed.
What Happens During an Ontario Support Default Hearing?
When default proceedings are initiated, the Director may prepare a statement of arrears and require the payor to provide a financial statement and supporting income information.
The court may hear oral testimony, require additional documents, and consider the payor’s financial circumstances.
Under Section 41(9), the payor is presumed to have the ability to pay the arrears and make subsequent payments unless evidence establishes otherwise.
This places an important responsibility on the payor to demonstrate why they have been unable to comply.
Failing to attend a required default hearing or provide the necessary financial disclosure can create further legal consequences, including the possibility of an arrest warrant to bring the payor before the court.
What Counts as a Valid Reason for Not Paying Child or Spousal Support?
Financial hardship does not automatically excuse a person from paying court-ordered support. However, a genuine inability to pay may be relevant when the court determines whether enforcement measures are appropriate.
Establishing Inability to Pay
In the original case, the court considered the legal requirements for establishing an inability to pay.
The payor was expected to demonstrate that:
- They were unable to pay because of valid reasons outside their control.
- They had taken their support obligations seriously and made reasonable efforts to comply.
- They had provided full and frank financial disclosure.
A valid reason may involve circumstances such as serious illness, disability, or involuntary unemployment that genuinely prevent a person from meeting their obligations.
However, the court will also consider the person’s broader financial circumstances, including their assets, employment history, spending decisions, and efforts to obtain income.
Simply stating that support payments are unaffordable is generally insufficient without reliable supporting evidence.
Why Is Financial Disclosure Important?
Financial disclosure in child support cases allows the court to assess whether a payor genuinely lacks the means to pay or has failed to prioritize their legal obligations.
Relevant documentation may include income records, banking information, employment records, property ownership details, and evidence of efforts to obtain work.
Where a payor has concealed assets, failed to disclose income, or repeatedly ignored disclosure orders, the court may draw conclusions that negatively affect the payor’s position.
What Are the Consequences of Not Paying Support in Ontario?
The Family Responsibility Office is responsible for enforcing many child and spousal support obligations in Ontario.
Where payments are missed, the FRO may take enforcement steps to recover outstanding amounts.
These measures can include garnishing employment income or bank accounts, suspending driver’s licences, taking steps involving federal licences or passports, and registering enforcement against property.
In particularly serious circumstances, default proceedings may result in an imprisonment order.
What Can a Court Order at a Default Hearing?
Under Section 41(10) of the Family Responsibility and Support Arrears Enforcement Act, the court may make various orders where it is not satisfied that the payor is unable to pay for valid reasons.
These may include requiring the payor to:
- Pay some or all arrears through periodic or lump-sum payments.
- Pay outstanding arrears by a specified deadline.
- Comply with the existing order to the extent of their ability.
- Bring a motion to change the support order.
- Provide security for outstanding and future payments.
- Report changes in employment or financial circumstances.
- Serve a period of imprisonment, where legally appropriate.
These remedies are intended to encourage compliance with support obligations and protect the interests of those entitled to receive support.
Importantly, imprisonment does not discharge unpaid support arrears.
When Is Imprisonment Appropriate for Unpaid Support Arrears?
Ontario courts have emphasized that imprisonment should generally be considered a last resort in support enforcement proceedings.
In an earlier decision, the Ontario Court of Appeal explained that enforcement legislation is remedial rather than punitive. In other words, imprisonment is intended to encourage a person who has the ability to comply with an order to meet their obligations. It is not intended simply as punishment for being unable to pay.
The court must therefore consider more than the existence of unpaid support.
Relevant considerations may include whether the payor has deliberately avoided payment, concealed assets, disregarded court orders, or failed to cooperate with enforcement proceedings.
Did the Ex-Husband Prove That He Could Not Pay?
In the 2018 case, the ex-husband argued that he had no income and lacked the ability to pay the outstanding amounts.
He also claimed that his ability to obtain employment had been restricted because the FRO had suspended his driver’s licence and passport.
He submitted financial statements and identified a cottage valued at approximately $30,000 as his only significant asset. However, the court identified several concerns with his evidence and conduct:
- The ex-husband had failed to provide complete financial disclosure, repeatedly disregarded disclosure orders, and demonstrated a pattern of evasiveness.
- The ex-husband had deliberately impeded the sale of the cottage, which could have been used to satisfy part of the outstanding arrears.
Ultimately, the court concluded that he had failed to establish a valid reason for his non-payment and had not rebutted the presumption that he could meet his ongoing support obligations.
What Was the Appropriate Remedy?
In determining the appropriate remedy, the court considered the ex-husband’s lengthy history of non-compliance.
The court noted that he had not acted in good faith, had a history of diverting funds and withholding financial information, and had prolonged proceedings to avoid paying support.
Other enforcement measures, including the suspension of his driver’s licence and passport, had already been attempted without securing compliance.
The court determined that a significant committal term was appropriate.
It approved an order requiring payments of $3,000 per month toward ongoing support and arrears, with five days of imprisonment for defaulting on each periodic payment.
The order also required a lump-sum payment of $90,000 by September 3, 2018, with 60 days of imprisonment in default, and payment of the remaining balance by June 1, 2019, with 100 days of imprisonment in default.
The decision clearly shows how persistent non-compliance, inadequate financial disclosure, and deliberate avoidance of support obligations can influence the court’s choice of enforcement remedy.
What Should You Do if You Cannot Afford Your Support Payments in Ontario?
If your financial circumstances have changed and you are struggling to meet your support obligations, it is important to address the situation with the court and a legal professional instead of allowing arrears to pile up.
A change in employment, disability, illness, or another significant financial development may justify reviewing an existing support order.
However, a support order generally remains enforceable unless it is properly changed.
Depending on the circumstances, a payor may need to seek a variation through the court or another legally available process.
The Government of Ontario’s child and spousal support guidance explains support obligations and available processes.
Speaking with an Ontario family lawyer may help you understand whether a support order modification is appropriate.
Frequently Asked Questions About Unpaid Support in Ontario
Can You Be Sent to Jail for Not Paying Child Support in Ontario?
Possibly, yes. A court may order imprisonment for non-payment of support arrears in certain circumstances. However, imprisonment is generally considered a last resort and depends on the payor’s ability to pay, conduct, and the relevant evidence.
How Long Can You Go to Jail for Unpaid Child Support in Ontario?
Under Section 41 of the Family Responsibility and Support Arrears Enforcement Act, certain imprisonment orders may specify a period of up to 180 days. The circumstances and terms of the particular order determine how the provision applies.
Does Going to Jail Cancel Child Support Arrears?
No. Imprisonment does not automatically cancel outstanding child or spousal support arrears. The amounts owing may remain enforceable after the period of imprisonment.
What Happens if You Miss an FRO Default Hearing?
If a payor fails to attend a required default hearing or provide financial disclosure, the court may issue an arrest warrant to bring that person before the court. Anyone receiving a default hearing notice should take it seriously.
Can the FRO Suspend Your Driver’s Licence for Unpaid Support?
Yes. The FRO has authority to initiate driver’s licence suspension proceedings where a payor has fallen behind on support payments. The Ontario government’s enforcement guidance explains possible payment arrangements and court procedures that may be available.
Can Child Support Arrears Be Reduced or Cancelled in Ontario?
In some circumstances, a court may consider a request to change support obligations or address arrears. However, unpaid support does not disappear simply because a payor experiences financial hardship. The outcome depends on the applicable legal requirements, financial evidence, and circumstances.
Can the FRO Enforce Spousal Support Arrears as Well as Child Support Arrears?
Yes. The Family Responsibility Office enforces qualifying spousal support and child support orders filed with it. Depending on the circumstances, enforcement measures may apply to either type of outstanding support.
Speak With Our Toronto Family Lawyers About Unpaid Support Arrears
Failing to meet court-ordered child or spousal support obligations can result in significant legal and financial consequences. Understanding the role of default hearings, the importance of financial disclosure, and the circumstances in which imprisonment may be ordered is essential for anyone dealing with support arrears.
Whether you are seeking enforcement of unpaid support or struggling to comply with an existing order, obtaining legal guidance can help you understand the options available.
At Gelman & Associates, our Toronto family lawyers assist individuals with child support, spousal support, and enforcement or modification of family court orders.
Contact Gelman & Associates or call 1-844-736-0200 to schedule a consultation and discuss your circumstances.
Disclaimer: This article is intended to provide general legal information and does not constitute legal advice. For advice regarding your particular circumstances, consult a qualified Ontario family lawyer.
