Examining the "Arrest of an Absconding Debtor" provision in the Family Law Act

What happens when a person owing support tries to leave Ontario with the intention of evading the support order? This is a rather uncommon subject in family law, at least insofar as the use of section 43 of the Family Law Act is concerned. There is considerably more case law about what will occur if a parent tries to take the child outside the jurisdiction of Ontario contrary to a court order. But nonetheless, section 43 of the Family Law Act provides an extraordinary mechanism that actually allows the court to issue a warrant for the arrest of an “absconding debtor”, or a person with a support obligation who is about to leave Ontario with the intention of evading support obligations. The sole purpose of which is to bring the debtor before the court. Section 43 of the Family Law Act states:

Arrest of absconding debtor

43 (1) If an application is made under section 33 or 37 and the court is satisfied that the respondent is about to leave Ontario and that there are reasonable grounds for believing that the respondent intends to evade his or her responsibilities under this Act, the court may issue a warrant for the respondent’s arrest for the purpose of bringing him or her before the court.

Bail

(2) Section 150 (interim release by justice of the peace) of the Provincial Offences Act applies with necessary modifications to an arrest under the warrant.

Juno v Hugo, 2012 ONCJ 211, clarifies that the court hearing might end with a bail term to ensure the debtor does not leave the jurisdiction, such as requiring the deposit of the debtor’s passport. In other words, the debtor is released under the condition that they hand in their passport:

88 Section 43 of the Act permits the court, by warrant, to have a support payor arrested and brought to the court if it has reasonable grounds to believe that he or she will abscond from the jurisdiction in order to avoid his or her support obligations. The court is permitted under subsection 43 (2) of the Act to impose bail terms. In such situations, the deposit of a passport would likely be a critical term of release.

Interestingly, and on its face, this provision appears to conflict with Canadian mobility rights pursuant to section 6 of the Charter of Rights and Freedoms, but there has yet to be a Charter case on section 43 of the Family Law Act. Juno v Hugo did respond briefly to this issue:

90 The court should be cautious before ordering the deposit of a passport into court as security for support due to its restriction on a person's mobility rights. However it isn't an exceptional remedy. The Family Responsibility Office would have had the power to seek a suspension of the respondent's passport if he had a Canadian passport….

In Deblois c. Canada (Procureur general), 2015 FC 971, the support payor’s passport was suspended by the support enforcement office under a different piece of legislation, and the court found that the provision violated the payor’s mobility rights but it was saved under section 1 as being justified (citing C (F) v Canada (AG), 2010 QCCS 622). In other words, the provision was not declared unconstitutional.

After the debtor is arrested and brought to court, the court will have the discretion to decide whether something like suspending the passport of the debtor is appropriate and/or necessary based on the facts of the situation.

Obvious takeaways? Although extremely rare, the court has jurisdiction to issue a warrant for the arrest of an “absconding debtor”, if the court believes the payor is about to leave Ontario in order to evade their support obligation.

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