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Family - Enforcement. Freedman v. FRO (for the Benefit of Rashell Freedman) [test for warrant of committal]
In Freedman v. FRO (for the Benefit of Rashell Freedman) (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a family law appeal, here brought against "the issuance of a warrant of committal ... sought on motion by the Respondent in this appeal, the Director of the Family Responsibility Office (“FRO”) to enforce the terms of a Default Order".
The court considers the test for the issuance of a warrant of committal, here in a family law context:The Test on a Motion for a Warrant of Committal
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[37] The decision of Krause J. was sound and without any palpable and overriding errors. Krause J. properly applied the two-part test for a hearing dealing with a warrant of committal.
[38] In order to deal with the appeal, it is first necessary to address the test on a motion for a warrant of committal. A motion for warrant of committal may be brought by the FRO after a temporary or final default order is made in a default hearing. At a default hearing, a support payor is presumed to have an ability to pay. The court may impose committal terms for unpaid support through a default order pursuant to subsection 41(10)(h) and (i) of the Family Responsibility and Support Arrears Enforcement Act, 1996 S.O. 1996 c. 31 (FRSAEA). Where the court makes a default order pursuant to that subsection and the support payor fails to comply with repayment terms, the Director may bring a motion pursuant to Rule 30(9) of the Family Law Rules, O Reg 114/99, seeking for a warrant of committal to issue in accordance with the terms set out in the default order.
[39] A motion for warrant of committal is a summary proceeding where the only issue is whether the support payor has complied with the payment terms of the default order. If the support payor advances reasons for failing to make the required payments, the reasons must refer to matters or events that arose subsequent to the date of the default order.
[40] Pursuant to s. 41(15) of the FRSAEA, the court may vary a default order only if the support payor has demonstrated a material change in circumstances since the making of the default order. Any circumstances that predate the default order are irrelevant at a warrant of committal proceeding. A warrant of committal hearing is not a trial de novo of the default hearing: Ontario (Director of Support and Custody Enforcement) v. Levenson, 1990 CanLII 3985 (Ont. C.J.), at para. 9(4).
[41] As such, the test for a warrant of committal is a two-part test:1) Has the support payor complied with the payment terms of the default order? If no;
2) Has the support payor provided evidence to satisfactorily demonstrate that they experienced a material change in their circumstances since the default order was made such that the terms of the default order should be varied? . Children's Aid Society of Toronto v. R.I.
In Children's Aid Society of Toronto v. R.I. (Ont CA, 2023) the Court of Appeal considered (and denied) an interesting second-level enforcement appeal by a Children's Aid Society of an order that "set certain dates for monthly access to three children as between their parents and their maternal grandparents". The grounds of appeal were that the first court, the Ontario Court of Justice, didn't have the jurisdiction to make the order (the 'rule dispute'), as a prior 'final' order had rendered the court functus officio - and thus without jurisdiction to issue subsequent 'enforcement' orders.
To understand this issue, note that the CAS appellate challenge focussed on several Courts of Justice Act jurisdiction-governing provisions [CJA 11(2), 38(2), and 96]:[11] Section 11(2) of the CJA establishes the jurisdiction of the Superior Court as having “all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.”
[12] In contrast, the Ontario Court of Justice “shall perform any function assigned to it by or under the Provincial Offences Act, the Family Law Act, the Children’s Law Reform Act, the Child, Youth and Family Services Act, 2017 or any other Act”: s. 38(2).
[13] Section 96(1) broadly provides that “[c]ourts shall administer concurrently all rules of equity and the common law.” Then, note that the central 'rule dispute' focusses on Family Law Rules [Reg 114/99], R1.8 ['Failure to obey order'], which reads:R1.8
If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order. This rule reflects a common issue arising in family law matters, that of 'non-compliance' and the court's available remedies to enforce it's orders.
In this case, after OCJ orders - that emanated from an Office of the Children’s Lawyer enforcement motion (seeking compliance with parenting and access terms) - the CAS appealed, first to the Superior Court and then to the Court of Appeal:B. THE SOCIETY’S POSITION
[9] The Society’s position throughout these proceedings has been that the OCJ judge did not have jurisdiction to entertain the enforcement motion brought by the Office of the Children’s Lawyer on behalf of J.R. In particular, the Society says that the CYFSA is a complete code for all child protection matters and that the only mechanism for returning to the court following a 12-month supervision order was by means of status review.
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(iii) Authority under r. 1(8)
[22] I now turn to what is the central issue in this case: whether the OCJ judge had jurisdiction to entertain an enforcement motion under r. 1(8). Unfortunately, the SCJ judge did not address this issue directly in dismissing the Society’s appeal. It therefore falls to this court to undertake the analysis afresh.
[23] The Society contends that there must be an existing proceeding, or ongoing case, for a judge to be able to resort to r. 1(8). It says that since the OCJ judge made a final order in December 2022, after the completion of the trial, there was no ongoing case. The OCJ judge was, the Society contends, in effect, functus officio after that point.
[24] I do not accept the Society’s submission. First, the case was not over or spent as the Society contends. The December order was final. But, as the OCL submits, the disputed motion was not about changing a final order, but rather about enforcing it. There was an obligation under the order for various parties to do particular things. The OCJ judge, in her role as the trial judge, was not functus, as that term is properly understood. The OCJ judge, like any trial judge, retained jurisdiction to ensure that the order made was followed.
[25] The Society’s position, by its own admission, would lead to the result that a party who needed the court’s assistance to enforce an order would have to start a new proceeding solely for that purpose. It is not clear what form that proceeding would have to take. In addition, that result is entirely inconsistent with one of the fundamental principles of our court system, which is to avoid a multiplicity of proceedings. Indeed, the CJA embodies this very principle in s. 138 which reads: “As far as possible, multiplicity of legal proceedings shall be avoided.”
[26] Further, the Society’s position does not accord with the wording of the Family Law Rules themselves. The Society says that there is no longer a case when the OCJ judge made the order in December 2022 after trial. Yet the Family Law Rules define what is meant when the word “case” is used in those Rules. Rule 2(1) defines “case”. It reads:“[C]ase” means an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals; [Emphasis added.] [27] The Family Law Rules therefore expressly contemplate that enforcement is part of the case. At the risk of stating the obvious, enforcement of an order cannot be undertaken until the order is made. There is no basis for drawing a distinction between orders, whether made during a proceeding or at the end of the proceeding, in terms of the enforcement process. I would note, on that point, that there are two other rules in the Family Law Rules that deal with enforcement. One is r. 26, which deals with certain forms of enforcement, and the second is r. 31, which deals with contempt. Neither of those rules contemplates starting a new proceeding. Indeed, r. 31(1) provides the contrary. It states that contempt may be sought “by a contempt motion made in the case in which the order was made”.
[28] Part of the expressed rationale for the Society’s position is that it wishes to avoid parties, in a proceeding under the Child, Youth and Family Services Act, 2017, being brought to court to deal with alleged breaches. Instead, the Society emphasizes its mandate to work cooperatively with parties and avoid litigation wherever possible. While commendable, it is not directly relevant to the issue here. Alternatives to court proceedings are promoted in all areas of family law. That courts have the power to enforce their orders in no way undermines the possibility of resolving matters out of court. To the contrary, it is often the very existence of an enforcement mechanism that permits an agreed resolution.
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