Can a family law debtor be incarcerated for failure to pay a temporary support order? Today the Court of Appeal said yes (Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825) and in so doing made some useful comments about the nature of incarceration in the context of unpaid support:
[25] Further, the case law and the FRSAEA recognize that imprisonment for non-payment is meant as a means of enforcing the support order and not as a means of punishing the payor. The payor must be released upon payment of the amount owed: see s. 41(10)(i). A committal order, imposed as a term of either a temporary or final order in a default hearing, is intended to induce compliance with the payment terms of the order. The prospect of imprisonment hopefully focuses the payor's mind on the importance of making the required payments. The enforcement rationale for imprisonment upon non-payment makes sense only if the payor has the ability to make the payments required by the order... .
2 comments:
Yes, this plainly begs the question of the debtor who has no means to pay. Family court judges, fortunately just a few, can be utterly capricious. Here in British Columbia they have imposed such outrageously excessive orders that they have driven at least one man to take his own life.
Mound, this is a real danger and one that concerns me. There are some defaulting support payors who are scofflaws but many who just can't pay. I don't know the answer but we gave up putting normal debtors in prison in, what 1872?, so why should family law debtors be any different?
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