PASSPORTS AND CHILD SUPPORT

This is an extremely interesting case, and the issue a very important one. Hopefully the matter will be dealt with at some point by the Supreme Court of Canada.

F.C. v. Canada (Attorney General)

F.C., Petitionerv.ATTORNEY GENERAL OF CANADA, RespondentandATTORNEY GENERAL OF QUEBEC and DEPUTY MINISTER OF REVENUE OFQUEBEC, Mis en cause

[2010] Q.J. No. 1331

2010 QCCS 622No.: 500-17-023755-047
Quebec Superior Court
District of MontrealThe Honourable William Fraiberg, J.S.C.Heard: January 5, 6 and 8, 2010.Judgment: February 24, 2010.
(118 paras.)

JUDGMENT

INTRODUCTION
1 F... C... believes the Canadian government has unlawfully confiscated his passport because he owes his ex-wife more than $82,000 for the support of their three children. He therefore asks the Court (i) to declare that section 67 of the Family Orders and Agreements Enforcement Assistance Act (the "FOAEAA")1 is unconstitutional for violating his right to freely leave and enter Canada guaranteed by section 6 (1) of the Canadian Charter of Rights and Freedoms (the "Charter") and (ii) to order the Canadian Passport Office to issue him a passport as an appropriate and just remedy pursuant to section 24 (1) of the Charter.
2 Under the FOAEAA, passports and federally issued occupational licences of delinquent support debtors can be revoked by the federal government upon the request of a provincial enforcement service (a "PES"). The debtor must owe $3,000 or three support payments and all other available enforcement strategies must have failed.
3 Mr. C... has sued the Canadian Passport Office and impleaded the PES for Quebec, who is the Deputy Minister of Revenue ("DMRQ") pursuant to section 77 of the Act to facilitate the payment of support2 (the "AFPS") and section 2 of the Minister of Revenue Act.3
THE LEGISLATIVE PROVISONS
4 Before reviewing the factual context, the Court will set out the relevant legislative and constitutional provisions:
Family Orders and Agreements Enforcement Assistance Act
PART III
LICENCE DENIAL
62. The definitions in this section apply in this Part.
"debtor" means a person who is in arrears under a support order or a support provision.
"persistent arrears", in respect of a support order or support provision, means
(a) arrears in any amount where the arrears are due to the failure to make in full the payments required in respect of any three payment periods, within the meaning of the support order or the support provision, or
(b) accumulated arrears of $3000 or more.
"provincial enforcement service" means any service, agency or body designated in an agreement with a province under section 3 that is entitled under the laws of the province to enforce family provisions;
"schedule licence" means a licence of a type or class set out in the schedule.
SCHEDULE
(Sections 62 and 63)
LICENCES
Canadian Passport Order
Passport
67. (1) Where a debtor is in persistent arrears under a support order or a support provision, a provincial enforcement service may apply to the Minister that the following actions be taken against the debtor:
(a) that no new schedule licences be issued to the debtor;
(b) that all schedule licences held by the debtor be suspended; and
(c) that schedule licences held by the debtor not be renewed.
(2) An application must be in the prescribed form and must contain the prescribed information concerning
(a) the identity of the debtor; and
(b) the support order or support provision.
(3) An application must be accompanied by an affidavit in the prescribed form. The affidavit must be submitted by an officer of the provincial enforcement service and must contain the following statements:
(a) that the provincial enforcement service is satisfied that the debtor is in persistent arrears under the support order or the support provision;
(b) that the provincial enforcement service has made reasonable attempts to enforce the support order or the support provision before making the licence denial application; and
(c)) that the provincial enforcement service has sent a notice to the debtor, at the debtor's last known address,
(i)
stating that the provincial enforcement service has reasonable grounds to believe that the debtor is in persistent arrears under the support order or support provision,
(ii)
stating that the provincial enforcement service intends to make a licence denial application in relation to the debtor,
(iii)
informing the debtor of the consequences to the debtor of a licence denial application, and
(iv)
advising the debtor that a licence denial application will not be made if the debtor enters into a payment plan that is acceptable to the provincial enforcement service or satisfies the provincial enforcement service that the debtor is unable to pay the amount in arrears and that the making of the application is not reasonable in the circumstances.
(4) An application may be made only after thirty days have expired after the notice referred to in subsection (3) was received by the debtor.
(5) A notice referred to in subsection (3) is deemed to have been received by a debtor ten days after it is sent to the debtor.
76. Every person who is notified that a passport issued to the person has been suspended under this Part and who fails to return the passport forthwith to a Passport Office, as defined in section 2 of the Canadian Passport Order, or who subsequently uses the passport after being so notified, is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both.
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
THE FACTS
5 Mr. C... and his former wife were divorced by a judgment rendered on August 6, 2001. The judgment ordered Mr. C... to pay her $750 per month for the support of their children, giving effect to their consent in that regard. no spousal support was ordered.
6 The judgment gave further effect to the consent by authorizing Mr. C... to pay the child support directly to his ex-wife instead of through the DMRQ, provided that he deposit security equal to one month of support with the latter, as the AFPS allowed.
7 On April 24, 2002, Mr. C...'s ex-wife asked the DMRQ to withdraw the exemption from the application of the AFPS and take over the management of the support file since Mr. C... was not paying her any support.
8 The DMRQ notified Mr. C... on June 3, 2002 that he would thereafter have to pay the support to the ministry.
9 On June 25, 2002, the DMRQ put Mr. C... in default to pay $9,064 in arrears accumulated between March 5, 2001 and June 30, 2002.
10 The Canadian Passport Office issued a passport to Mr. C... on July 9, 2002. It expired on July 9, 2007.
11 Because he was in persistent arrears within the meaning of section 62 AFPS, owing $16,528.57 at the time, on April 3, 2003 the DMRQ sent him a notice warning of his intention to ask the Minister of Justice of Canada to suspend his passport under Part III of the FOAEAA.
12 Instead of trying to negotiate an agreement with the DMRQ to pay the arrears in instalments as he might have done under section 72 FOAEAA, on May 15, 2003 Mr. C... brought a motion before this Court to cancel them, as well as all future child support.
13 Gaudreau J. dismissed the motion on June 21, 2004, concluding that Mr. C... had not proven that he was incapable of paying the support ordered in the divorce judgment.
14 On July 8, 2004, the DMRQ therefore sent him a new demand for payment, this time claiming $28,382.19 in support arrears. He did not respond.
15 On September 27, 2004, acting pursuant to section 67 FOAEAA, the DMRQ requested the federal Minister of Justice to require the competent federal ministries to suspend any occupational licences held by Mr. C..., as well as his passport.
16 The Canadian Passport Office notified him on December 7, 2004 that his passport had been suspended and ordered him to surrender it.
17 He did so through his attorneys on June 21, 2005 on the occasion of an examination on discovery in the present proceedings.
18 Mr. C... has always insisted that he is penniless, relating in his examination on discovery that he lost a job in his father's business when it closed in 1999 and that he has not looked for another afterwards because he does not want to be an employee.
19 He complains that being deprived of his passport has prevented him from earning a living by importing exotic woods from South America, since he cannot travel there without it.
20 Between 2002 and 2004, while he was paying no support, his passport shows that he made nine separate trips to various South American countries. He claims he was able to do so by borrowing money from friends and family.
21 He explains that he has continued to buy clothing, shoes and presents for his children and to take them on outings through the generosity of his parents and other family members.
22 As of December 16, 2009, he owed his former wife $82,930.34 for unpaid child support arrears.
23 Since the divorce judgment of August 6, 2001, only $4,529.45 has been credited to his support account with the DMRQ, of which $2,200 was paid directly to his ex-wife and $774.23 was a forfeited security deposit under the AFPS. The balance seems to have been made up of various tax refunds owed to him that were appropriated by the DMRQ.
THE CLAIMS
24 Since the parties have mutually admitted all exhibits and allegations of fact, the only claims are legal: specifically Mr. C...'s that section 67 FOAEAA is unconstitutional and the governmental parties' that it is not.
25 The Attorney General of Canada contends that there has been no section 6 Charter violation caused by section 67 FOAEAA to begin with, since it is and always has been within Mr. C...'s power to simply make an arrangement with the DMRQ to pay down the arrears in installments he can afford if he cannot pay them all at once. He could have avoided giving up his passport if he had done so in the first place and can still get it back if he does.
26 His alleged predicament is therefore of his own making and should give him no standing before the Court to argue a constitutional violation, as his claim is frivolous.
27 If the Court should nonetheless conclude that Mr. C...'s right of mobility to and from Canada has been infringed, the governmental parties contend that the infringement is justifiable under section 1 of the Charter.
28 For purposes of disposing of the present proceedings, no question may be raised of Mr. C...'s inability to pay the support ordered. The DMRQ and the Court remain bound by the judgment of June 21, 2004 that he is able to do so until such time as he should reapply to annul or reduce his obligations as a result of a material change of circumstances. Presumably because he does not believe he would succeed, he has chosen instead to attempt to solve his problem by a constitutional challenge.
THE ISSUE
29 The constitutional question before the Court is the following: Is section 67 FOAEAA inconsistent with section 6 (1) of the Charter and thus of no force and effect?
30 Two specific questions are raised by this general question: (1) Does section 67 FOAEAA violate section 6 (1) of the Charter; and, (2) if it does, is it a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under section 1 of the Charter? If the answer to (1) is affirmative and the answer to (2) negative, then the constitutional question must be answered affirmatively.
DISCUSSION
Is there a section 6 violation?
31 If there was ever any doubt that the removal or refusal to issue a passport to a Canadian citizen does not violate his or her charter right of mobility, it has been removed in the case of Canada (Attorney General) v. Kamel,4 where speaking for the Federal Court of Appeal, Décary J. held:
[15] (...) To determine that the refusal to issue a passport to a Canadian citizen does not infringe that citizen's right to enter or leave Canada would be to interpret the Charter in an unreal world. It is theoretically possible that a Canadian citizen can enter or leave Canada without a passport. In reality, however, there are very few countries that a Canadian citizen wishing to leave Canada may enter without a passport and very few countries that allow a Canadian citizen to return to Canada without a passport (A.B., Vol. 7, p. 1406, Thomas Affidavit). The fact that there is almost nowhere a Canadian citizen can go without a passport and that there is almost nowhere from which he or she can re-enter Canada without a passport are, on their face, restrictions on a Canadian citizen's right to enter or leave Canada, which is, of course, sufficient to engage Charter protection. Subsection 6(1) establishes a concrete right that must be assessed in the light of present-day political reality. What is the meaning of a right that, in practice, cannot be exercised?
32 It makes no difference whether the infringement of the right results from the refusal to issue a passport, its suspension or a refusal to renew it, as the FOAEAA applies all three variants of the sanction to a support debtor in persistent arrears.
33 The Attorney General of Canada nonetheless argues that Mr. C...'s claim is frivolous because he can easily change the situation by making a payment arrangement with the DMRQ or by proving to this Court that he is incapable of doing so.
34 With respect, the Court believes that the argument would put fundamental rights at risk. It could then be argued that the most outrageous violation could be visited on lawbreakers who would have no complaint because, after all, they had brought on the violation by breaking the law.
35 The Court considers that such an argument is more appropriately made at the minimum impairment step of the Oakes test, which will be discussed below. In that context, it could be advanced that the lawbreaker could relatively easily remove the impairment of his or her Charter right without denying that the impairment had occurred in the first place.
Is the violation justified under section 1 of the Charter?
The Oakes test
36 Early in the history of the Charter, it became necessary for the Supreme Court to devise a method of determining when any particular legislative provision that breached a fundamental right or freedom was excusable as a reasonable limit prescribed by law that could be demonstrably justified in a free and democratic society, the exception permitted under section 1.
37 That method was first expressed as follows by Dickson C.J. in the case of R. v. Oakes5 and soon came to be known as the Oakes test, which has served well since:
69.
To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
70.
Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".
71.
With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. (underlining added)
38 Distilled to its essentials, the Oakes test may be stated thus:
Does the legislative provision impugned have an objective addressing a concern that is pressing and substantial in a free and democratic society?
Is there a rational connection between the provision and the objective?
Does the provision impair the Charter right as little as possible?
Is the effect of the impairment proportional to the legislative objective i.e. is the objective worth the price of the impairment?
39 The Court will now apply the test to the present case.
Pressing and Substantial Legislative Objective
40 Part III of the FOAEAA in its present form was adopted pursuant to section 22 of Bill C-41, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act6 an omnibus reform intended to make the support provisions of the Divorce Act more equitable, predictable and effective.
41 Section 64 is clear:
The purpose of this Part is to help provincial enforcement services enforce support orders and support provisions by providing for the denial of certain licences to debtors who are in persistent arrears.
42 Therefore, the objective of the provisions that follow it is for the Canadian government to help the competent provincial authorities enforce support orders, while the means of doing so, expressed in section 67, is by denying certain federal licences and passports to debtors who are in persistent arrears.
43 In R. v. Bryan,7 the Supreme Court held, per Bastarache J., that the determination of the "pressing and substantial" stage of a section 1 analysis is not an evidentiary contest and that a theoretical objective thus characterized is sufficient for a court to simply accept as always pressing and substantial in any society that purports to operate in accordance with the tenets of one that is free and democratic.8
44 On third reading of Bill C-41 on November 6, 1996, Hon. Allan Rock, the Minister of Justice at the time, made the following remarks to the House of Commons:
Des pensions alimentaires satisfaisantes et constantes apportent peu de réconfort aux enfants si elles ne sont pas payées. C'est pourquoi plus de la moitié de ce projet de loi est consacré à des mesures qui renfonceront les moyens actuels d'exécution dont dispose le gouvernement fédéral, en présentant de nouveaux moyens d'obtenir le paiement des pensions alimentaires pour enfants.
[...]
La personne qui refuse de verser la pension alimentaire de son enfant commet une infraction grave dont les conséquences peuvent marquer l'enfant pour la vie. Il ne s'agit pas simplement d'assurer le nécessaire et de verser un soutien financier. Il est prouvé qu'un enfant dont la pension alimentaire n'est pas versée par un parent absent est marqué pour la vie et interprète cela comme un abandon ou un rejet.
45 The Attorney General of Canada has introduced in proof voluminous records of discussion and debate of the bill, both in committee and before the House of Commons, showing that section 67 FOAEAA was intended to ease the lot of single-parent families headed by women, the group most vulnerable to poverty in Canada.
46 In reality, this measure is directed at support debtors who simply refuse to meet their support obligations. A PES can apply to the Minister of Justice under Part III of the FOAEAA only after all other reasonable means of collection have failed and the debtor has not either demonstrated a complete inability to pay or made an arrangement with the PES to reduce the debt by installments within his or her means. The goal is not to punish the recalcitrant support debtor but to induce him to begin paying some arrears, if not all that he is obliged to.
47 The Court has no difficulty in accepting the relief or avoidance of poverty of support recipients as a pressing and substantial legislative objective in a Canadian society that is free and democratic.
48 Support obligations between parents and children and between spouses are part of the law in every jurisdiction in Canada. In most jurisdictions, the obligation extends also to unmarried partners in a conjugal relationship.
49 These obligations are of directive public order. They are fundamental to the welfare and security, not only of the individuals directly involved, but also of Canadian society at large.
50 In Quebec, we are reminded of the importance of these obligations in the Charter of Human Rights and Freedoms:9
39. Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are capable of providing.
47. Married or civil union spouses have, in the marriage or civil union, the same rights, obligations and responsibilities.
Together they provide the moral guidance and material support of the family and the education of their common offspring.
as well as in the Civil Code:
585. Married or civil union spouses, and relatives in the direct line in the first degree, owe each other support.
51 The Supreme Court has pronounced on the crucial role of support in alleviating poverty.
52 In the case of Willick v. Willick,10 L'Heureux-Dubé J. wrote of the urgency of addressing the support needs of children and their custodial parents:
XLII. In my view, the financial burden of divorce should not be borne primarily by children and their custodial parents. Children are our country's most important resource, our future. Their needs cannot be minimized on account of their parents' divorce. They are entitled to be looked after properly both before and after divorce. I do not mean to imply that they must live in luxury. I strenuously object, however, to situations in which children live at or near the poverty level despite the fact that the means of the non-custodial parent are sufficient to meet their needs. Children's needs cannot be reduced to a bare minimum so that the non-custodial parent can enjoy a significantly more comfortable lifestyle.
53 Two years earlier in Moge v. Moge11 the focus of her concern had been the impoverishment of divorced women:
58 (...) In the federal Department of Justice (Bureau of Review), Evaluation of the Divorce Act -- Phase II: Monitoring and Evaluation (1990), it was found, based on client interviews that, following divorce, 59 per cent of women and children surveyed fell below the poverty line, a figure that dropped to 46 per cent when support was included in the calculation of their incomes (see pp. 92-93). However, a more realistic picture, as it is not restricted to the more affluent segment of the divorcing public, is probably revealed by an analysis of court files, which determined that in 1988, overall two-thirds of divorced women had total incomes which placed them below the poverty line. When support was excluded, 74 per cent of divorced women fell below the poverty line (see pp. 94-95). It is apparent that support payments, even assuming they are paid, are making only a marginal contribution to reducing economic hardship among women following divorce. In contrast, a previous study released in 1986, Evaluation of the Divorce Act -- Phase I: Monitoring and Evaluation, found that only 10 per cent of men were below the poverty line after paying support, and the average income was $13,500 above the poverty line in such one-person households after the payment of support.
60 An examination of the economic position of single mothers is also useful in assessing the effects of dissolution of marriage since about 30 per cent of single mothers are divorced: Statistics Canada, Women in Canada: A Statistical Report, 2nd ed. (1990), at p. 16. In 1987, 57 per cent of single mothers lived below the poverty line: National Council of Welfare, Women and Poverty Revisited (1990), at p. 58. Gunderson, Muszynski and Keck report a figure of 44.1 per cent in 1986 (p. 18). (...)
62 Findings in the Report of the Social Assistance Review Committee, Transitions (1988), show that support can be a significant factor in alleviating some of these negative economic effects. The report notes that recipients of social assistance who receive support payments are more likely to leave the programme than those who do not and that the length of time a recipient receives social assistance is inversely proportional to the total amount of support received.
(...)
92 Based upon the studies which I have cited earlier in these reasons, the general economic impact of divorce on women is a phenomenon the existence of which cannot reasonably be questioned and should be amenable to judicial notice. (...)
54 A more recent assessment of the crucial importance of an effective support collection regime is to be found in the evidentiary affidavit dated December 23, 2009 of Jim Sturrock, the former Research Manager of the Family Children and Youth Research Unit of the federal Department of Justice.
The enforcement of support orders has become an increasing concern as the proportion of single-parent families has grown over the years. Single-parent families, as a proportion of all census families, increased from 8 percent in 1966 to 13 percent in 1986 (Statistics Canada 1990, 2007a and 2007b). (...) As of 2006, single-parent families accounted for 16 percent of all census families (Statistics Canada 2007b).
Single-parent families can also be looked at as a proportion of all census families with children. From 1986 to 2006, the proportion of single-parent families increased from 19 to 26 percent (Statistics Canada 2007b). A majority (80%) of these families are headed by women (Statistics Canada 2007b).12
4. COMPLIANCE WITH CHILD SUPPORT PAYMENTS
It is estimated that about 33% of all cases with support arrangements in Canada are registered with the MEPs13 at any one time. (GSS, 2006) It could be assumed that the remaining orders not registered are in compliance, or at least do not require the services of a MEP. Thus, this means that those recipients not receiving their payments in full or on time are most likely to be registered with a MEP.(...)
The SMEP14 shows that 97 percent of orders registered with the MEPs in 2008/2009 included amounts for child support: 93 percent of orders were for child support only and 4 percent were for both spousal and child support. The remaining 3 percent of registered support orders were exclusively for spousal support. The data also show that the majority of the payors were men (Statistics Canada 2009).
While compliance rates have improved considerably from the high levels of default observed in the early 1980s, many families still do not receive their child support payments in full or on time. Rates of compliance/default can be measured, analyzed and reported in a number of different ways. In terms of receiving monthly payments in full and on time, compliance ranged from 54 percent (Northwest Territories) to 79 percent (Quebec) (Statistics Canada 2009). However, monthly compliance rates can fluctuate depending on the season and the influence of federal income tax refunds being received during tax time. Another measure that examines payment history over an entire year shows that, in 2008/2009, the MEPs collected between 56 percent (Northwest Territories) and 90 percent (Quebec) of all regular payments due for the year (Statistics Canada 2009).
Other data from the SMEP finds (sic) that, while the numbers pertaining to compliance are encouraging, there are a great many cases where few, if any payments are being made and where arrears are increasing. As of March 31, 2009, most provinces and territories showed that there is a sizeable proportion of cases where arrears increased, ranging from 55 percent in Alberta to 20 percent in Quebec.15
(underlining added)
55 While all statistical studies and judicial pronouncements have focused on support beneficiaries who are women or children, there is no reason why men who are support recipients, though evidently a small minority, should not also benefit from the licence denial regime of the FOAEAA.
56 The entitlement to support normally presumes a state of dependence and vulnerability. That need must surely be a pressing and substantial concern in a free and democratic society, regardless of the age or gender of the recipient.
Rational Connection
57 Is there a rational connection between the licence or passport deprivation that section 67 FOAEAA provides for and the stated objective of collecting support?
58 If the measure made no material difference in that regard, it would be mere harassment or punishment of the delinquent support debtor without any redeeming benefit for the beneficiaries.
59 One effect of a passport suspension is that it fosters respect for support orders by impeding and perhaps frustrating attempts of delinquent debtors to hide assets outside Canada, where both are beyond the reach of our courts. It likewise prevents the delinquents from earning undeclared and unseizable revenue out of the country.
60 A good illustration of this effect may be found in the case of Dickie v. Dickie.16
61 Dr. Dickie was a highly successful Toronto plastic surgeon who in 1991 earned $991,000. He and his wife were divorced in 1994. In 2001 the Court ordered him to pay very high child support and more modest spousal support.
62 A year later he moved to the Bahamas, a jurisdiction lacking reciprocal enforcement of support order legislation, without informing his ex-wife even though he had undertaken to advise if he intended to move.
63 Because of the move and the removal of most of his significant assets from Canada, the Court ordered him to provide security for his child support obligations in the amount of $150,000 and security for costs of $100,000.
64 Rather than comply, he chose to be found in contempt and to serve a sentence of 45 days in jail. He thereafter continued to be in flagrant default. By April 2007, he had paid $51,923 but owed $580,148.
65 The Ontario Family Responsibility Office applied for and obtained a suspension of his passport under the FOAEAA. It was only this initiative that prompted him to seek a variation order to terminate all further support and to rescind all arrears.
66 He claimed that without his passport his work permit in the Bahamas would expire without renewal and that he needed the permit to work there. The removal of his passport had produced its desired effect. It forced him to deal.
67 The licence denial program is thus both a carrot and a stick for delinquent support debtors: a stick because it makes life inconvenient or unpleasant enough to induce them to change their ways, and a carrot because it encourages them to obtain resolution of their problem by making an arrangement for payment over time or by obtaining judicial confirmation of their inability to pay.
68 In his affidavit, Mr. Sturrock states that both the provincial enforcement services and the Office of Child Support Enforcement of the U.S. Department of Justice, which administers a similar program to that found in Canada, report anecdotally that the success of the licence suspension programs lies in their ability to prompt large payments of arrears for cases that have been in serious default over extended periods of time.
69 He offers statistical data obtained from the provincial enforcement services of Quebec, Ontario, Alberta and British Columbia, noting that they have accounted for 93% of all licence denial applications sent to the federal Department of Justice since May 1997.
70 The Court has reproduced the data in the following table. It shows that the average reduction of arrears from the samples taken has varied between $4,366 and $9,500.
71 To show the impact these increased payments have, Mr. Sturrock observes:
To put this into context, the median gross income for a single mother living in Canada was $36,765 in 2005, the lowest median income of all the major economic family types (Statistics Canada 2008). If this average amount were to be received in one year, it would represent 22% of that median income and unlike income, is not taxable. Thus, when payment does result from initiating federal licence denial action, it can make a considerable difference to single mothers.17
72 He concludes:
The analysis of the MEPs' caseload and financial data clearly show that the Federal Licence Denial Program has contributed significantly to a reduction in arrears. What is interesting is the similarity of results: in a great number of cases, the warning letter produced a positive outcome and therefore the MEP did not need to proceed with a formal application for suspension or denial of a licence, including a passport.18
The Experience in Other Democracies
73 In aid of the government's defense, the Family, Children and Youth Section (FCY) of the federal Department of Justice prepared a report dated December 29, 2009, entitled "Child Support Remedies: An International Perspective", principally under the supervision of Me Danièle Ménard, formerly Senior Counsel and Coordinator of the Support Enforcement Policy and Implementation Unit and supported by her affidavit.
74 The report shows that the U.S.A., Australia, and New Zealand all provide for the imposition of travel restriction on delinquent support debtors, in the form of passport denial or departure prohibition orders, and the statistics cited show how successful these measures have been in those countries.
75 The United Kingdom passed legislation to allow restrictions on travel as a means to enforce support obligations in the form of the Child Maintenance and Other Payments Act 2008 which received Royal Assent on June 5, 2008, but section 27, the relevant provision, has yet to be brought into force.
76 In France, Belgium, Luxembourg, Portugal and Italy, persistent non-payment of support is considered family abandonment, a criminal offence punishable by fine and/or imprisonment. Imprisonment is likewise possible in England, Wales and Northern Ireland.
77 The FCY chose these countries because they share legal systems and social values similar to Canada's.
78 Therefore, the Court may conclude that similar and sometimes more drastic measures in aid of support collection have been adopted by comparable free and democratic societies, lending credibility to Canada's position that there is a rational connection between the two.
79 The efficacy of licence suspensions as a way of getting offenders to pay fines was recognized by the Supreme Court in R. c. Wu,19 where Binnie J. opined:
56 In most cases, revocation or suspension of permits is a potent collection tool, especially where the fine is owed to the provincial Crown. Anyone who has tried to renew a driving licence despite an unpaid fine is familiar with the procedure. While suspension or revocation do not themselves produce payment of the fine, they put pressure on the offender to find the money. This remedy is frequently resorted to. It appears that in 2002 there were 95,909 driving permits in Ontario suspended as a result of default in the payment of fines: Ontario, Ministry of Transportation, Driver Control Statistics (2003). Apart from driving licences, suspension or revocation would be available provincially in respect of registration of vehicles, taxicab licences, hunting permits, work permits, timber cutting permits, mineral exploration licences, building permits and the full range of activities touched by the apparatus of the regulatory state.
80 It should therefore be no surprise that the federal licence denial program is only one of the tools available to the provincial enforcememt services.
81 An even more potent tool is the denial of drivers' licences to persistent debtors of support, an option that exists in eight provinces (which do not include Quebec) and in the large majority of the American states, as noted in "Licence Suspension and Denial: Overview of a New Mechanism for Child Support Enforcement", a study by the federal Department of Justice dated August 26, 2009 and available on the latter's website.
82 The study notes that monitoring data and anecdotal reports from the jurisdictions with these mechanisms suggest that the threat alone of licence denial and suspension has been effective in encouraging payment of outstanding amounts owed for child support.
Minimal Impairment
83 It appears that Dickson C.J.'s holding in Oakes that to satisfy the proportionality test, the impugned legislative provision should impair "as little as possible" the right or freedom in question was subsequently moderated by the Supreme Court to a requirement that it should do so "as little as is reasonably possible" or in another formulation, not fall beyond a range of reasonable alternatives. It is not the demonstrably least impairment that is required, just one of what may be several that are reasonably minimal.
84 The Court derives this understanding from the statement of the minimal impairment criterion expressed by Deschamps J., citing previous jurisprudence of the Supreme Court, in Trociuk v. British Columbia (Attorney General),20 as cited by Décary J. in A-G Canada v. Kamel:21
57.
(...) Madam Justice Deschamps recently explained the step that the court must take in this regard as follows:
36 Although the legislative means are rationally connected to the legislative objective, if it can be shown that they do not minimally impair the right at issue, they will still fail to satisfy the proportionality element of the Oakes test (supra, at p. 139). In applying the minimal impairment requirement, a court is required to afford the legislature a margin of appreciation (Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (S.C.C.), [1989] 1 S.C.R. 927, at p. 999). That a court can propose means that are less impairing than the impugned legislation is not sufficient to give rise to a finding that an impairment is not minimal (Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, at p. 1138). However, if legislation does not impair an individual's rights "as little as is reasonably possible" (R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (S.C.C.), [1986] 2 S.C.R. 713, at p. 772), if in other words, legislation falls beyond "a range of reasonable alternatives" (RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (S.C.C.), [1995] 3 S.C.R. 199, at para. 160), it will not satisfy the minimal impairment requirement.
85 The Court will now turn its attention to this stage of the Oakes test. While Mr. C...'s main argument against section 67 FOAEAA was that it is unnecessarily severe because the passport suspension lacks a fixed term and because the FOEAA makes no exception for travel out of the country in case of a bereavement or a need for medical treatment not available in Canada, the Court will consider all possible consequences of the provision to determine whether the impairment is indeed minimal.
A measure of last resort
86 First of all, the proof shows that section 67 FOAEAA is generally resorted to by provincial enforcement services when less severe measures have failed and it is evident the support debtor is wilfully avoiding his obligations. Mr. Sturrock makes this clear in his affidavit:
In most cases the MEPs are seeking to use their less serious enforcement measures against payors. The MEPs want payors to contact them in order to get support flowing for the children and their families and/or make arrangements to straighten out their cases. All MEPs have services or programs to help bring these payors in to pay or to resolve issues with their child support cases, with the objective of getting money flowing again to the family that needs the financial support. In most cases, payors are not expected to pay off all of their arrears at one time, but rather they can reach a financial arrangement to pay arrears off monthly by adding payments to their regular ongoing obligation. Further, the MEPs can provide information to payors that may assist them in getting back to court when it is clear their ability to pay has diminished and their situation is not temporary.
That being said, there are payors who are unwilling to pay; these payors have the ability or means to pay, but go to considerable lengths to avoid paying. Some avoidance techniques include moving to another jurisdiction, hiding assets and income sources, working "under the table" or failing to file income tax returns. From the collection of enforcement measures available to the MEPs, these types of cases will attract the most serious measures, particularly when the payor does not contact the MEP in some fashion to explain their situation and make arrangements for paying or changing their order or agreement.22
87 We must remember that section 67 contains within its own terms conditions that show legislative intent that a licence denial application be resorted to after all else has failed.
88 Thus, in section 67(3) an affidavit of an officer of the PES must accompany the application, attesting that the PES is satisfied that the debtor is in persistent arrears, that the PES has made reasonable attempts to enforce the support order or the support provision before making the application; and that the PES has sent a notice to the debtor at his last known address advising that the PES has reasonable grounds to believe that he is in persistent arrears, that it intends to make a licence denial application, informing him of the consequences and finally advising him that a licence denial application will not be made if he enters into a payment plan that is acceptable to the PES or satisfies it that he is unable to pay the arrears and that the application is unreasonable in the circumstances.
89 Furthermore, the debtor is given a long "count to ten." Section 67 (4) provides that the application may be made only 30 days after the debtor has thus been notified and he is deemed to have received the notice referred 10 days after it is sent by section 67 (5), so he still has 40 days to avoid the suspension by paying, making an arrangement or going to court to cancel the arrears in addition to whatever time had passed before the notice was sent.
A temporary measure
90 Secondly, the fact that the passport suspension lasts only as long as the debtor is wilfully in default underscores the minimal nature of the section 6 impairment.
91 Under section 72 (1) FOAEAA, a PES must immediately request that all actions taken under Part III be terminated when it is satisfied that the debtor has paid the arrears, is unable to pay them or is complying with a payment plan it considers reasonable.
92 The PES must make the same request if it has ceased to enforce the support orders and support provisions against the debtor, presumably because of a court order terminating them.
93 The debtor can therefore readily remove or alleviate the hardship by approaching the PES to work out a plan to reduce the arrears or to convince it that he simply cannot pay.
94 A passport or licence suspension is obviously a less severe sanction and less of an impediment to earning revenue that could be used to pay support than prison or a fine.
95 Mr. C...'s suggestion that the suspension is not minimally impairing because of its indefinite duration falls before the consideration that it would be even more impairing if it were imposed for a finite term, regardless of the debtor's payment of the arrears or inability to pay them. In that case, it would be purely punitive.
96 On the other hand, it would also be unduly indulgent for a debtor who was able to pay the arrears but chose to endure the suspension of his passport for a predetermined period rather than pay them.
Possibility of curing the default or contesting the decision of the provincial enforcement service by appeal or judicial review
97 Under section 46 AFPS, a support debtor must comply with the DMRQ's demand to pay an amount within 10 days or enter into a written agreement with the DMRQ to pay it on terms and conditions, subject in the latter case to filing documents or information establishing his financial situation and reporting on steps he has taken to obtain a loan or security from a financial institution upon the request of the DMRQ.
98 Otherwise, under section 61 AFPS, the debtor may contest the demand for payment by registered mail within 20 days after its receipt.
99 Under section 62, the DMRQ must examine the grounds of the contestation and make his decision known within 30 days after receipt of the notice of contestation.
100 Under sections 63 and 64 AFPS, the debtor may appeal the DMRQ's decision within 30 days by a motion to the Superior Court, which is heard and decided by preference.
101 Under section 65, the court may cancel or vary the demand for payment or return the file to DMRQ for a new decision.
102 It is thus evident that even before the DMRQ makes an application for a passport suspension, the debtor has the possibility of complying with the demand for payment, negotiating terms or contesting the demand, inclusive of an appeal to the court. In the latter case, the mandatory delays alone take up three months.
103 Then assuming the order is upheld, the suspension can still be avoided by compliance or by negotiating terms.
104 While the Court was not provided with copies of the support enforcement statutes of the other provinces, it has no reason to doubt that similar provisions exist there as well. Even if no formal right of appeal were provided for, the ministerial decision would still be subject to judicial review for unreasonableness or a failure to respect the rules of natural justice.
Possibility of obtaining a temporary passport for reasons of health, bereavement or work
105 Mr. C... complains that the license denial program under the FOAEAA is not minimally impairing because the statute contains no provision for foreign travel on compassionate grounds.
106 While it is true that there is no express provision in that regard, section 66 makes it clear that Part III does not limit or affect the royal prerogative with respect to passports in any manner.
107 It is the policy of the Canadian government to issue temporary and geographically limited passports on urgent and compelling compassionate grounds and there is recourse to a neutral arbitrator in case of refusal. Mr. C...'s counsel accepted the following stipulation of fact introduced by the Attorney General in lieu of testimony:
10b)
Dans les cas de refus de service, de révocation ou encore de passeports suspendus en vertu de la Loi d'aide à l'exécution des ordonnances et des ententes familiales, Passeport Canada, peut à tout moment, examiner une demande de passeport à durée de validité limitée comprenant une restriction géographique pour des raisons urgentes et impérieuses de compassion, tel qu'un état de santé critique ou le décès d'un membre de la famille immédiate.
10c)
La pratique en cas de révocation est à l'effet qu'environ une douzaine de demandes de ce type sont présentées chaque année au Canada; de ce nombre la moitié sont acceptées et le passeport de "compassion" recherché est émis par le bureau des Passeport. Par ailleurs, lorsque l'émission du passeport de "compassion" est refusée, le requérant peut être entendu par un arbitre neutre.
108 Since this policy can extend to passport holders who are considered security risks, there is no reason to doubt that it would likewise apply to delinquent support payers.
109 Furthermore, the Court does not see any reason to accept at face value Mr. C...'s complaint that he is prevented from earning revenue outside Canada. Nothing has ever prevented him from proving concretely to the DMRQ that he has a realistic prospect of generating revenue from his intended travel that would result in some support payments for his children.
110 While he remains in default, it is unreasonable of him to insist on his right to foreign travel unless he establishes such a link. In its absence, the funds for the travel, even if borrowed or donated, would be better spent on his children.
111 The same observation applies to the case of delinquent support payers who are deprived of federal occupational licences. Although that is not Mr. C...'s problem, he asks that section 67 FOAEAA be declared unconstitutional without distinction.
112 If such a payer wants a licence reinstated so he can earn a living, it is only fair that some of the earnings be used to meet his support obligations.
113 Finally, as already noted, the affidavit of Me Danièle Ménard shows that other countries, presumably as liberal and democratic as Canada, impose sanctions on delinquent support debtors that are as impairing of their rights and sometimes more so.
Proportionality: Is satisfying the legislative objective worth the price of the impairment?
114 In A-G Canada v. Kamel,23 Décary J. disposed of this last phase of the Oakes test thus:
(c) proportionality between the effects of the measure and the law's objective
[66] To echo the words of Chief Justice McLachlin in JTI-Macdonald, at paragraph 45, this is an inquiry that "focuses on the practical impact of the law":
45.
What benefits will the measure yield in terms of the collective good sought to be achieved? How important is the limitation on the right? When one is weighed against the other, is the limitation justified?
[67] Once the Minister is of the opinion, in the lawful exercise of his or her discretion, that it is necessary to refuse to issue a passport to a Canadian citizen on the ground of national or international security, the denial of a passport does not weigh heavily in the balance when compared to the resultant strengthening of security. It is not for the Court to speculate on the harm that this person could cause to the security of Canadians, Canada and the international community. The evidence is clear: the Minister would fail in his or her duty to protect Canadians and Canada and to comply with Canada's international commitments if the Minister issued the requested passport. There is no reason to wait for the risk to materialize. The Court must be satisfied, here, with hypotheses and realistic speculations and must rely on, to quote Justice Bastarache in Harper, "a reasoned apprehension of ... harm". Common sense dictates that the possible collective harm outweighs the real individual harm.
115 If proportionality is to be assessed by applying common sense to the question, and we exclude urgent and compassionate grounds and the generation of foreign revenue that would be used to pay support - both concerns that the licence denial program can accommodate - then delinquent support payers' inconvenience or disappointment resulting from their inability to travel outside Canada because they are temporarily deprived of passports is a harm far outweighed by the demonstrated individual and collective benefit resulting from the deprivation or its threat in the form of reduced support arrears, particularly those owed for poor children and their custodial parents.
CONCLUSION
116 The Court therefore concludes that section 67 FOAEAA, while violating section 6 (1) of the Charter, is justified under section 1 of the Charter.
117 WHEREFORE FOR ALL THE FOREGOING REASONS THE COURT:
118 DISMISSES the Petitioner's motion with costs.
WILLIAM FRAIBERG, J.S.C.