Can you go to jail for failing to pay child support?

So how exactly does it work? How does a support payor go to prison?

In Ontario, support orders are usually enforced by the Family Responsibility Office (FRO), an agency of the Government of Ontario.

Where the support payor does not make the payments, the FRO has many different ways to enforce. Most commonly, the FRO garnishes the payor’s wages at source. This is the most effective way of getting support.

Other enforcement methods available to the FRO?

• suspending the payor’s driver’s license
• suspending the payor’s passport
• reporting the payor to the Credit Bureau
• seizing assets belonging to the payor
• asking a judge to put the payor in prison.

Putting the payor in prison is usually a last resort. This occurs only where there is a long history of default. A payor does not go to jail for missing one payment.

Where the FRO seeks to imprison a payor, it sets up a “Default Hearing.” The payor is served. The presiding judge asks why the payor is not paying. If the judge comes to the conclusion that the payor could pay, but is just refusing to, then the judge can imprison the payor for up to 180 days. Typically, the payor will get several chances. The payor appears at the first appearance of the Default Hearing, and the judge warns the payor to start paying, failing which the payor may be imprisoned. If, after several of these warnings, the payor still does not pay, then the payor can be imprisoned.

Serving the prison term does not discharge the arrears.

The threat of prison is an effective remedy. There are some very recalcitrant support payors. Some of these support payors have no assets in their own name; all their work is “under the table.” This is particularly true with self employed people who can show little or no income on their tax returns. Some support payors are so recalcitrant that they will turn their lives upside down just to avoid paying support – such as quitting regular employment and working only for cash.

I have seen cases where a payor claims to be penniless and unable to pay support. However, when they are finally sentenced to prison, money miraculously “appears” and some or all of the support arrears are paid so that the payor avoids going to prison. Many payors are very fearful of what will happen to them in prison.

The statutory basis of all this is section 41 (9) of the Family Responsibility and Support Arrears Enforcement Act:

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,

(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. 2005, c. 16, s. 24.

For more information on this and other issues of interest in family law, contact James Herbert (jherbert@chappellpartners.ca)