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Enforcement of Arrears

December 7, 2015 Posted by Naranglaw About Narang Law Professional Corporation


Section 7 of the Family Responsibility and Support Arrears  Enforcement Act states that the Director may at any time refuse to enforce a support order in his or her opinion, the recipient repeatedly accepts payment of support directly from the payor; enforcement of the support order has been stayed by a court; or enforcement of the order is otherwise unreasonable or impractical. However, when the director is not satisfied with the inability of the payor to make support payments, a default hearing may be scheduled, which would determine if the payor shall be incarcerated due to unwillingness to pay.

 

Section 41(9) of the Act states that there is a presumption at the default hearing that the payor has the ability to pay the arrears and that the statement of arrears served by the Director is correct. The payor has to prove that he/she is unable to pay arrears due to valid reasons, that is, an event over which the payor has no control has rendered him/her totally without assets or income with which to meet his obligations.

 

Oftentimes, the payor calls upon the court to exercise one of its alternative powers under section 41(10) of the Act, To adjourn the default hearing pending the payor’s motion to change the support orders. Further, the payor may argue that the default hearing be heard with a motion to change the final order.

 

The remedy that is generally sought at default hearings is incarceration, which is considered a remedy of last resort in default proceedings.

 

http://www.canlii.org/en/on/oncj/doc/2015/2015oncj287/2015oncj287.html?searchUrlHash=AAAAAAAAAAEAGDE5OTMgQ2FuTElJIDc5NTAgKE9OIENKKQAAAAEAEC8xOTkzb25jajEwMDAwMDMB&resultIndex=5

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