Canadian Supreme Court leans towards US model; allows jailing for non-payment of child support

By John F. Smith, World Fathers Union

A relatively unheralded Canadian Supreme Court decision handed down recently (Dickie v Dickie 2007 SCC 8) , may have serious consequences for Canadian child-support payors, and possibly for other debtors in ordinary civil cases. The decision reverses the successful appeal of a payor against a family-court contempt ruling for non-compliance with an order to post security against a payment order. The overturned appeal was heard by the Ontario Court of Appeal (Dickie v Dickie, 2006 CanLII 576 (ON C.A.)).

The questions of law in this case were two: First, whether or not an appeals court could or should refuse to hear an appeal from a contempt ruling before the contemnor (the party held in contempt) had purged the contempt; second, whether an order to provide an irrevocable letter of credit was equivalent to an order to pay money. The second question was important here because there is an exception in the Rules of Procedure (Rule 60.11(1)) forbidding a judge to use the power of contempt--which is a quasi-criminal proceeding, and holds the possiblity of jailing the contemnor--to punish someone for refusing to make a payment of money.

In the Ontario Court of Appeal ruling, one of the three judges, Laskin, JA, dissented, and his reasons were cited without being elaborated upon by the Supreme Court in its ruling. In effect, Judge Laskin opined (and the Supreme Court later agreed) that an order to provide an irrevocable letter of credit to the wife's solicitor was not equivalent to an order to pay money, and that therefore Dr Dickie could be found in contempt and jailed, which he was. This seems to contradict the intent of the British law underlying the Canadian contempt rules: ' [T]he object of r. 60.11(1) is to ensure that people are not imprisoned because they have not satisfied their monetary obligations. This objective can be traced back to the English case of Bates v Bates (1888), 14 P.D. 17 (C.A.), where the court commented (at 19) on the purpose of the Debtors Act: “The object of the Act was to prevent the imprisonment of persons for nonpayment of ordinary debts.”

However, Laskin--and the Supreme Court--did not find that child and spousal support arrears were 'ordinary debts', and thus an order to secure those arrears by letter of credit and deposit of security could be enforced by contempt proceedings.

Significantly, Laskin's dissent, upon which the Supreme Court relied, focused strongly on retaining wide discretionary authority for the judiciary to skirt exceptions such as Rule 60.11(1). He stated that the opposing view 'fails to take into account that the court retains discretion whether to order security, and whether to use the contempt power to enforce the failure to provide it,' and he went on to say, 'Orders for security...will, as a matter of principle, be warranted only where there is a real risk of non-payment. Dr. Dickie’s obvious intent to disregard his support obligations made it reasonable to order security in this case. Just because these orders were made in this case does not mean that they will be made in all cases.'

That last may be theoretical reassurance, but it still opens the door to debtor's prison rather widely, and it is not likely to prove easy to shut it again. It is clear that with this decision, the possibility now exists for Canadian payors of child and spousal support to be jailed for non-payment, as they are routinely jailed in the United States. It will be left to the discretion of the judge to order it, not to the law as written.---JFS (15-03-07)