A father in persistent arrears of a child support order (“G.B.I.”) was unsuccessful in his application for judicial review of a decision by the Director of Maintenance Enforcement (the “Director”), suspending his passport. G.B.I. was also unsuccessful in seeking an order in the nature of mandamus directing the Director to request termination of the licence denial application that was outstanding against him.

Administrative law – Decisions of administrative tribunals – Family Maintenance Enforcement – Suspension of licence for arrears – Judicial review – Compliance with legislation – Jurisdiction – Standard of review – Reasonableness simpliciter

G.B.I. v. British Columbia (Director of Maintenance Enforcement), [2005] B.C.J. No. 1753, British Columbia Supreme Court, August 4, 2005, Ralph J.

In 1998, G.B.I. was ordered by the Superior Court of the State of Washington to pay $400 USD for child support. That order was registered with the Family Maintenance Enforcement Program (“FMEP”) in British Columbia in August of 2000.

The order from Washington State was based on G.B.I.’s income from a temporary academic position. Since that time, G.B.I. never earned an income at that level. His employment had been sporadic and temporary, although he submitted that he had made efforts to obtain employment. At the time of the application, he was in arrears in the approximate amount of $75,000 CAD.

Section 67 of the Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 (“FOAEAA”) provides that the Director may apply to the federal Minister of Justice for the suspension of a licence where a debtor is in “persistent arrears” under a child support order. The definition of licence includes a passport. The definition of persistent arrears includes accumulated arrears in excess of $3,000.

The Court considered whether it had jurisdiction to review the decisions of the Director to apply to the federal Minister of Justice for the denial of a licence under section 67 of the FOAEAA. The Court held that the Family Maintenance Enforcement Act, R.S.B.C. 1996, c.127 (“FMEA”) was vested with a wide-ranging series of powers to accomplish the purpose of the legislation, which was articulated by Lambert J.A. in the decision of British Columbia (Maintenance Enforcement, Director) v. I.W.A. Forest Industry Pension Plan (Trustees of) (1991), 61 B.C.L.R. (2d) 264 as:

… to address the evil of widespread default in payments required to be made by family maintenance payment orders. In essence it makes available to persons entitled to maintenance payments the power and the resources of the state to enforce payment and thereby alleviate the distress which is the frequent consequence of non-payment.

The Court concluded that the decision of the Director to apply for a licence denial under section 67 of the FOAEAA was subject to review under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 (“JRPA”). The Director was found to constitute a tribunal as defined under the JRPA because it was vested with powers which constituted a statutory power of decision when acting to remove G.B.I.’s entitlement to continue to receive access to a benefit or licence (here, his passport).

The Court reviewed the decision of the Director on the standard of reasonableness. Although there was no privative clause in either piece of relevant legislation, there was a limitation on the right of appeal under the FOAEAA. There was significant expertise in the Director as a decision maker with specialized knowledge in the area of support enforcement and collection of arrears. However, the nature of the dispute was factual and section 29.2(2) of the FMEA prescribed a reasonableness standard of review by the provincial court to decisions by the Director to deny a debtor a driver’s licence. Accordingly, the Court concluded that the applicable standard of review for the question of the denial of a licence (passport) under the FOAEAA should similarly be reasonableness simpliciter.

In applying the reasonableness standard, the Court conducted a somewhat probing examination. Although G.B.I. argued that the Director’s decision was unreasonable because it failed to accept that G.B.I. was more likely to repay his debt and fulfil his continuing support obligations if he was permitted to apply for employment outside of Canada, there was evidence that G.B.I. had told an enforcement manager of the FMEP that he was going to give up his Canadian residency and that he would not be in the country for any court proceedings, so the program should “stop wasting his time and money”. G.B.I. did not make any significant payment towards his arrears and did not file a Notice of Motion to seek variation of the Washington State support order with appropriate alacrity.

The Court was not satisfied that G.B.I. had demonstrated that the Director had acted unreasonably and so G.B.I.’s petition was denied.

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