Sheltering Assets & Support Obligations

The case of Ontario (Director, Family Responsibility Office) v. Hinke 2006 Carswell Ont 6779 tells the tale of a husband who transferred his assets in the form of shares to his current spouse (a third party to the enforcement proceedings) and other creditors of his choice and thought he could thus evade paying off support arrears of $71,352.10 owed his former spouse and children.

The Family Responsibility Office (as an aside, counsel would be wise to remember the active role this government unit can assume in the enforcement of support orders pursuant to the Family Responsibility and Support Arrears Enforcement Act) took carriage of the enforcement proceedings against the husband and, as noted, pursued the transferee, the husband’s current spouse with equal vigour, for sheltering the assets and income of the husband by virtue of her acceptance of the transfer.

The explanation of the husband – that he himself could not sell the shares because of their nature and the restrictions attached to them but could transfer them to third parties – was brushed aside in the finding of Justice Linhares de Sousa that “Mr. Hinke, in the full knowledge of his existing support obligations, both ongoing and arrears and the enforcements proceedings brought by FRO to collect on the existing support order, voluntarily and willingly divested himself of assets within his control, that should have been available to FRO so as to realize its enforcement obligations on behalf of Ms. Lake [the former spouse] and Mr. Hinke’s children.”

Further, the new wife who was found to have sheltered the husband’s assets and income was ordered to pay the full amount of the arrears into court and an additional sum of $144,000.00 to provide security for future support payments. Perhaps the husband, so charmed by the simple cleverness of his scheme, was oblivious to the blatancy of his scheming. Counsel is reminded by this tale of our duty to provide that sobering second thought.