This is a truly unique judgment handed down by the Ontario Superior Court of Justice. We have commented about this matter before as the parties have been disputing about custody, access and their respective financial obligations arising from their separation…
This case considers the interesting question of whether an Ontario court has the jurisdiction to order a South African family law litigant to deposit his passport with the court as security for his support obligations.
The parties met in Taiwan in 2003 and began cohabiting that year. The Respondent was originally from British Columbia and the Applicant from South Africa. In 2006, the Applicant sponsored the Respondent and the pair moved to Canada, where they pooled their financial resources and established a number of businesses. They married in 2009.
The parties separated in March 2011 after learning that they were both HIV positive, whereafter the Respondent began to actively exclude the Applicant from the businesses.
In May 2011 the Applicant commenced an action for spousal support and successfully obtained an order from the court requiring the Respondent to pay spousal support on a temporary basis. Thereafter, the Respondent brought a motion to set aside this order, challenging the Applicant’s entitlement to support.
In reply, the Applicant asked that the terms of the order continue, and that the court make a further order requiring the Respondent to deposit his passport with the court as security for his support obligation.
Under typical circumstances, if the Respondent had a Canadian passport, the Family Responsibility Office could suspend his passport as a means of enforcing the support order.
However, as the Respondent only had a South African passport, this remedy could not be invoked in this case. Instead, Justice Sherr considered the court’s powers under section 34(1)(k) of the Family Law Act. According to this provision, a court may make an interim or final order requiring the securing of a payment by a charge on property or otherwise.
As the deposit of the passport would not constitute a charge on property, the court had to consider whether the deposit would fall under the “or otherwise” category identified by the section. The court decided that it did, and in doing so considered the objectives of the Family Law Act, one of which is to ensure that parties pay court ordered support and do not leave the jurisdiction to avoid their obligations.
Moreover, the court indicated that although it had very limited authority to make orders under section 34(1)(k), the Applicant’s case fell within an exception under section 34 (2), in that the Applicant had been a public charge and needed the support to avoid continuing to be a public charge.
In arriving at its decision in this regard, the court further considered the case of Tatarchenko v. Tatarchenko, wherein the Ontario Superior Court of Justice refused to release a passport to a party on the basis that he owed over $7,000 in support arrears. In that case, the court reasoned that it was essential to protect the integrity of the court process and ensure that payors did not abscond from the jurisdiction.
In the result, the court ordered the deposit of the Respondent’s passport, on the basis that it was necessary to ensure that the Respondent complied with his support obligations. The court further reasoned that there was no evidence that the passport would be required by the Respondent in the near future and that the Respondent could ask to change the term in the future by being in good standing under the support order or providing other security for his obligation.