Toronto Star

Mar. 7, 2001 12:06 EDT

Ruling gives deadbeat parents possible way to skip payments

Some child money may be up in air after court decision

Theresa Boyle
The Toronto Star

Thousands of deadbeat parents could get away with not paying millions of dollars they owe in child support because of a recent court decision.

The ruling also raises questions about whether the province's Family Responsibility Office improperly suspended drivers' licences and garnisheed the wages of deadbeats.

The ruling involves parents who negotiate their own support payment plans, bypassing the government as a collection agent.

If those privately negotiated deals fall apart, support recipients can opt back into the government program.

But the Ontario Divisional Court has ruled that the government, through its Family Responsibility Act, cannot collect arrears for periods when the parents were not part of the government program.

The province is appealing.

Some 11,300 families are affected by the court ruling, according to court documents supporting the government's appeal motion.

Each week, about 80 to 100 families ``opt out'' of having support payments enforced through the Family Responsibility Office, the documents state.

``Millions of dollars (in support payments) are at stake and thousands of drivers' licence suspensions may be imperilled,'' warned Liberal MPP Michael Bryant (St. Paul's), who held a news conference yesterday to call attention to the problem.

He said two-thirds of support recipients who opt out eventually change their minds and ask the government for assistance in collecting payments.

The legislation, passed in 1996, is intended to crack down on deadbeat parents by allowing wages to be garnisheed or licences suspended.

Brendan Crawley, spokesperson for the attorney-general office, said the government expects its appeal to be heard next month.

``We simply disagree,'' with the Divisional Court's interpretation of the legislation, he said.

``It's the ministry's position that the current legislation gives the director of the Family Responsibility Office the authority to enforce arrears that accrue during the hiatus in filing,'' he added.

Bryant, the Liberal justice critic, charged that the legal loophole restricting enforcement was inadvertently created by the Conservative government because of its hasty and sloppy drafting of the Family Responsibility and Support Arrears Enforcement Act.

``By ramming through this bill, the Tories have caused victims of deadbeat parents to do without,'' he said.

``There is a large gaping loophole in the Harris government's child support legislation through which deadbeats are able to avoid paying millions of dollars to thousands of families (who) are rightfully owed this money,'' he charged.

Bryant plans to introduce a private members' bill to close the loophole when the Legislature reconvenes.

The court case in question involved Harold Westendorp, an unemployed truck driver from Brockville. Seven years ago, his former spouse withdrew a support order only to refile it a year later.

The province went after Westendorp for $6,500 in support-payment arrears that had accrued over the year in question.

But the courts subsequently ruled that the Family Responsibility Office did not have jurisdiction to enforce arrears that accrued during the year the support order was withdrawn.

In his ruling, Divisional Court Justice Lawrence Kozak wrote: ``If it was the intention of the legislation to extend the enforcement provisions to include arrears that accrued during a hiatus period before refiling, then it could very easily have done so. The omission to make such a provision can be construed as a limitation on the jurisdiction of the (Family Responsibility Office).''

Asked how the government is handling requests for assistance in enforcing payment of child support that was to be made during a hiatus, Crawley said that ``in most cases'' the Family Responsibility Office is proceeding with enforcement.

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