“The current statutory scheme governing default hearings is found in section 41 of the Family Responsibility and Support Arrears Enforcement Act (the Act) and rule 30 of the Family Law Rules (FLR). The Director may initiate the default proceeding. The Director prepares a statement of arrears. The payor files a financial statement and, if so inclined, a default dispute. The payor is usually asked to provide proof of income. The court may hear oral testimony, direct the production of other relevant documentation and add parties to the default proceedings. See: Fischer v. Ontario (Family Responsibility Office), 2008 ONCA 825, paragraph 17.
At the hearing, the amount of arrears owed and the payor’s ability to pay are the central issues. Subsection 41 (9) of the Act puts the onus on the payor, as follows:
Presumptions at hearing
(9) At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director’s office.
Subsection 41 (10) of the Act sets out the powers of the court on a default hearing as follows:
Powers of court
(10) 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,
(a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears;
(b) discharge the arrears in full by a specified date;
(c) comply with the order to the extent of the payor’s ability to pay;
(d) make a motion to change the support order;
(e) provide security in such form as the court directs for the arrears and subsequent payment;
(f) report periodically to the court, the Director or a person specified in the order;
(g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur;
(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.
Subsection 41 (11) of the Act states:
No effect on accruing of arrears or other means of enforcement
(11) An order under subsection (10) does not affect the accruing of arrears, nor does it limit or otherwise affect any other means of enforcing the support order.
Subsection 41 (17) of the Act reads:
Imprisonment does not discharge arrears
(17) Imprisonment of a payor under clause (10) (h) or (i) does not discharge arrears under an order.”
Ontario (Director, Family Responsibility Office) v. Burke, 2025 ONCJ 402 (CanLII) at 47-51