Ottawa Men's Centre

 

Peter Roscoe's Research

 

 

 

                            

                        

              

Superior Court Penalties I

                                    

                            

                                                 

                                                             

Default

 

 

 

In general default describes a failure to make a payment or complete some required procedure. This may be so inconsequential it is ignored, or serious enough to be imprisoned And have your property seized. In this study default is broadly defined. It does not require a specific hearing or formal declaration.. Defaults may occur at interim, trial, or post trial hearings. Mere threats of punitive action are not included. An actual penalty must be imposed. The most serious would be contempt, imprisonment, or striking pleadings so the parties case is dismissed and they cannot participate at a trial. Lesser penalties include Charging or vesting orders, garnishments, or security deposits. Arrears of support have been considered as a default if failure to pay is a significant factor in the motion or ruling. Defaults may be ruled as precluding a party from putting there case before the court until debts are paid, which can be a big problem if a party is seeking a variation because some change of circumstance precludes them from paying

 

Default is generally related to financial payments. Non financial matters have not excluded, but are more usually dealt with instead as contempt. Nor are cases restricted to those between ex partners. For example support payors may be defaulted by provincial collection agencies. A summary of the cases and decisions is included in Appendix A.

 

 

 

For family cases where default was an issue the results are as follows

 

 

 

    Party

Number

defaulted

Set aside

  Some   .  .  relief

No relief

Male

   64

    5

    10

     49

Female

    5

    5

      0

      0


 

 

 

 

Summarized in percentage terms

 

 

Party

Number

defaulted

Set aside

   Some   .  .  relief

No relief

Male

   100

    7.8

    15.8

     76.4

Female

   100

   100

     0

      0

 

 

 

 

% Men Defaulted = 64 / 69 x 100 = 92.8 %

 

% Women Defaulted = 5 / 69 x 100 = 7.2 %

 

 

 

 

 

 

                                                          Conclusions

 

 

 

It must be noted that 5 out of 5 women defaulted had the decision overturned on appeal or variation. 5 out of 64 men also had their decisions overturned, so after relief is considered the statistics are as follows.

 

                                               % Men Defaulted = 59 / 59 x 100 = 100 %

 

                                               % Women Defaulted = 0 / 59 x 100 = 0 %

 

 

It can be concluded that men comprise 92.8 % of the family defaults before relief is considered, and 100 % after. Men are defaulted at a rate of 13 to 1 compared to females, and when a female is defaulted she stands a 100 % chance of having the default set aside with no significant consequences. When a man is defaulted there is a 7.8 % chance the default will be set aside with no consequences, and a 15.8 % chance he will get some relief, but a 76.4 % chance he will get no relief at all. The consequences may be quite substancial including, losing access or custody of your children, losing your property or home, having your assets frozen, losing your access to the court, or having your income imputed beyond ability to pay. Also they may include any combination of the afforementioned, and / or imprisonment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Appendix A ó Ontario Default Cases Studied

 

 

 

 

Sex..of

  party

                      Outcome

 

1

Emamghorashi v. Nateghi, 2003 CanLII 2306 (ON S.C.)

 

m

Set aside

2

Regaudie v. Thomas, 2002 CanLII 2667 (ON S.C.)

 

m

Defaulted then set aside after trial

3

Erwin v. Erwin, 2004 CanLII 5046 (ON S.C.)

 

m

Set aside after trial but he gets equalization

4

Murano, Re, 2004 CanLII 17633 (ON S.C.)

 

m

Jailed for disclosure, denied a trial FRO default set to trial

5

Mercer v. Cruise, 2005 CanLII 44837 (ON S.C.)

 

m

FRO default, variation refused

6

Stein v. Stein, 2002 CanLII 2780 (ON S.C.)

 

m

Pleadings struck for support default

7

Campeau v. Campeau, 2005 CanLII 25948 (ON S.C.)

 

w

Pleadings struck then set aside, suit with lawyers 

8

Majkut-Giammarco v. Giammarco, 2004 CanLII 34797 (ON S.C.)

 

m

 Denied trial

9

Charlton v. Ferguson, 2004 CanLII 10401 (ON S.C.)

 

m

Jail threatened, security deposit, unemployed imputed income

10

Halow v. Siivonen, 2003 CanLII 19543 (ON S.C.)

 

m

Default struck answer

11

Rhodes v. Rhodes, 2004 CanLII 47803 (ON S.C.)

 

m

No trial divorce no answer

12

Lantaigne v. Lantaigne, 2005 CanLII 39886 (ON S.C.)

 

m

Default but FRO enforcement stayed

13

Family Responsibility Office v. Roscoe, 2005 CanLII 33530 (ON S.C.)

 

m

Jail threatened, imputed income, intentionally unemployed

14

Lauge v. Liepins, 2002 CanLII 2712 (ON S.C.)

 

m

Spousal support default, security deposit 25 K, unemployed

15

Weslock v. Weslock, 2003 CanLII 44337 (ON S.C.)

 

m

Vesting order so she gets condo 

16

O'Brien v. O'Brien, 2003 CanLII 2367 (ON S.C.)

 

m

Unusual. Default on posting security, trial held. verdict with held until payment.

17

Milunovic v. Milunovic, 2004 CanLII 19101 (ON S.C.)

 

w

Divorce judgement set aside, and no contempt found over access

18

Rivers-Eshkibok v. Eshkibok, 2002 CanLII 2849 (ON S.C.)

 

w

Divorce judgement overturned and time extension on equalization

19

De Biasio v. De Biasio, 2005 CanLII 4095 (ON S.C.)

 

m

Costs, threat of pleadings struck for interim support default

20

 

Wildman v. Wildman, 2006 CanLII 12975 (ON S.C.)

 

m

Seizure of property order

21

Kimpton v. Kimpton, 2003 CanLII 2147 (ON S.C.)

 

m

Costs with default as aggravating factor

22

Jonas v. Da Silva, 2003 CanLII 49354 (ON S.C.)

 

m

Pleadings struck, freezing order

23

Matheson v. Matheson, 2003 CanLII 1949 (ON S.C.)

 

m

Default set aside with variation

24

Dustin v. Dustin, 2003 CanLII 2106 (ON S.C.)

 

m

Default causing ex patre trial though present

25

Millard v. Cargoe, 2004 CanLII 15955 (ON S.C.)

 

m

Denied variation for support, costs, access changed, leave requirement 

26

Marie Cunningham v. Charles LeFebvre, 2004 CanLII 54630 (ON S.C.)

 

m

Costs


 

27

Orser v. Grant, 2003 CanLII 2277 (ON S.C.)

 

m

Materials for default hearing stricken, jailed as absconding debtor, 7 K , 7 K security

28

Koster v. Koster, 2002 CanLII 2693 (ON S.C.)

 

m

 Ex parte trial, vesting order on home  separation agreement overturned, support ordered

29

Wigle v. Wigle, 2003 CanLII 2359 (ON S.C.)

 

m

Charging order on boat for not paying spousal

30

Harrison v. Harrison, 2004 CanLII 6216 (ON S.C.)

 

m

Evidence dismissed  pay or jail

31

Malka v. Seliktar, 2004 CanLII 34933 (ON S.C.)

 

m

Default set aside orders overturned

32

Lajoie v. Lajoie, 2005 CanLII 23684 (ON S.C.)

 

m

Income imputed above tax forms in new order from default of support

33

Chamanlall v. Chamanlall, 2006 CanLII 1916 (ON S.C.)

 

m

Sale of home, jail threatened, some small relief on child support

34

Ristimaki v. Cooper, 2004 CanLII 16074 (ON S.C.)

 

m

Man leaves country defaulted petitioned into bankruptcy woman canít collect sues lawyer

35

Masotti v. Masotti, 2002 CanLII 2800 (ON S.C.)

 

m

Denied trial, not set aside but finally gets variation

36

Marchese v. Marchese, 2004 CanLII 34429 (ON S.C.)

 

m

Default on costs and support, threat of pleadings struck  and contempt, support order imputed

37

Laue v. Laue, 2000 CanLII 20295 (ON S.C.)

 

m

 FRO default no variation

38

Domb v. Domb, 2002 CanLII 2661 (ON S.C.)

 

m

Arbitration decision defaulted so pleadings struck and uncontested trial variation refused twice permanently struck ?

39

Rueter v. Rueter, 2002 CanLII 2733 (ON S.C.)

 

 m

Adjourned motion to strike pleading for not paying interim support. Permission to combine suit for flipping assets

40

Piskor v. Piskor, 2002 CanLII 2755 (ON S.C.)

 

m

Stay of variation until he pays, says heís broke

41

Brydon v. Berrigan, 2003 CanLII 14089 (ON S.C.)

 

m

Default of criminal restitution order for assault garnishment from whole new family

42

McLean v. Vassel, 2004 CanLII 4031 (ON S.C.)

 

m

Default on support denied variation

43

N.L. v. J.C., 2005 CanLII 4838 (ON S.C.)

 

m

Pleadings not struck but made to sign disclosure release

44

Reid v. Saliba, 2005 CanLII 48321 (ON S.C.)

 

m

Default on support, payment as a lump sum with interest

45

Bunt v. Assuras, 2003 CanLII 17952 (ON S.C.)

 

w

Defaulted, set aside, man sues lawyers

46

Provenzano v. Provenzano, 2004 CanLII 5075 (ON S.C.)

 

m

Set aside, womans lawyer doesnít tell of ex parte order, lawyer pays costs

47

Ostap v. Ostap, 2003 CanLII 2193 (ON S.C.)

 

m

Lump sum but lesser. Court overrules separation agreement

48

Shelly v. Shelly, 2004 CanLII 5083 (ON S.C.)

 

m

All property charged for default on child support

49

Ojo v. Ojo, 2005 CanLII 1498 (ON S.C.)

 

m

Default on child and spousal support Charging order on property and RRSP, 25K lump sum arrears no motion to vary until paid  500 K imputed income

50

Stone v. Stone, 2005 CanLII 2946 (ON S.C.)

 

m

Canít file an answer until he pays, contempt

51

Richards v. Richards, 2005 CanLII 3398 (ON S.C.)

 

m

False records, income imputed, equalization based on her figures, a defaulting payor by not giving records

52

Irwin v. Irwin, 2005 CanLII 8725 (ON S.C.)

 

m

Defaults on extraordinary expense, separation agreement upheld

53

Desjardins v. Waters, 2006 CanLII 1203 (ON S.C.)

 

m

Child support default, minor reduction.

54

Eagle v. Eagle, 2004 CanLII 2561 (ON S.C.)

 

m

Improper disclosure, refuse to vary arrears

55

Valente v. Valente, 2004 CanLII 48680 (ON S.C.)

 

m

Fail to abide by many orders, security, freezing

56

Pike v. Cook, 2005 CanLII 2034 (ON S.C.)

 

m

 Default leads to order for uncontested trial. Mom get interim sole custody and presents false evidence to get order to take kid to usa , -

57

Dunklin v. Dunklin, 2006 CanLII 5877 (ON S.C.)

 

m

Child support arrears and threat of bankruptcy, order to put pension in trust until equalization paid

58

Gartley v. Thibert, 2002 CanLII 2726 (ON S.C.)

 

m

 Adult child in school quits and mom doesnít tell FRO. Man gets mostly varied

59

Trevisanutto v. Crnkovic, 2005 CanLII 19789 (ON S.C.)

 

m

Failure to provide disclosure is fraud, default on support, FRO to enforce costs as well retroactive calculation

60

A.P. v. G.P., 2006 CanLII 9976 (ON S.C.)

 

m

Failure to provide disclosure, default on ordered return of funds, prohibited from claiming debts to wife in bankruptcy

61

N.S. v.D.S., 2002 CanLII 2711 (ON S.C.)

 

m

No more motions until paid

62

Bekarkhanchi v. Bozchelouei, 2003 CanLII 30463 (ON S.C.)

 

m

Default judgement of lump sum child and spousal support, 447 equalization payment, variation denied

63

Elliott v. Elliott, 2004 CanLII 30969 (ON C.A.)

 

m

Noted in default and an order made for a reference into a pension asset not ruled on at trial

64

Sangster v. Sangster, 2003 CanLII 48248 (ON C.A.)

m

 Default set aside on appeal

65

Tannahill v. Tannahill, 2005 CanLII 51025 (ON C.A.)

m

 Default leads to 30 K lump sum order, denied appeal

66

Brophy v. Brophy, 2004 CanLII 25419 (ON C.A.)

 

m

Default on 8 K per month support, 25 K arrears, appeal heard and dismissed

67

Marks v. Tokarewicz, 2002 CanLII 2799 (ON S.C.)

w

Denied motion for support due to default on costs, overturned and her motion may proceed

68

Wamsley v. Moore, 2003 CanLII 2269 (ON S.C.)

 

m

Pleadings to be struck unless he pays 25.6 K to FRO immediately, contempt motion abandoned

69

Iddon v. Iddon, 2006 CanLII 1450 (ON S.C.)

 

m

Default on child support variation refused income imputed