Crozier v. Nolin, 2024 ONSC 4343

Court File and Parties

Court File No.: FC-23-383 Date: 2024-08-02 Superior Court of Justice – Ontario

Re: Traci-Lynne Elizabeth Crozier, Applicant And: Renaud Nolin, Respondent

Before: Justice K.A. Jensen

Counsel: Applicant, Self-Represented Respondent, Self-Represented with agent Ms. O’Garr appearing at the hearing

Heard: July 25, 2024

Endorsement

Introduction

1The Applicant, Traci-Lynne Elizabeth Crozier, and the Respondent, Renaud Nolin, began cohabiting in January 2010. They never married. The parties separated on September 29, 2022.

2The parties have two children together, namely Marlow Nolin, born September 19, 2016 (“Marlow”), and Vivian Nolin, born June 28, 2021 (“Vivian”) (collectively “the children”).

3Ms. Crozier brought a motion requesting temporary sole decision-making responsibility for the children, primary parenting time, spousal support, increased child support based on income imputed to Mr. Nolin, disclosure, a second valuation of Mr. Nolin’s income at his expense, and costs on a full indemnity basis.

4For his part, Mr. Nolin argued that Ms. Crozier’s motion should be dismissed. Mr. Nolin also brought a cross-motion for a reduction in the child support he is to pay based on a report about his income, an order for proportional sharing of the section 7 expenses, an order that the parties communicate exclusively using Our Family Wizard, a disclosure order and costs on a full indemnity basis.

5Both parties grossly under-estimated the time required for a motion of this nature, which essentially comprises all of the issues raised in the Application and Answer. They estimated three hours, but the hearing was in fact, much longer.

6In a motion of this nature, the court is put in the nearly impossible position of assessing affidavit evidence in which both parties make directly contradictory assertions. It is very difficult to assess the credibility of the evidence to determine what the appropriate outcome should be on motions like this. The best that can be done is to assess the consistency of the written and documentary evidence, and on that basis determine what is in the children’s best interests for the time being. That is what I have done on this motion.

7As the court stated in Gafanha v. Gafanha, 2022 ONSC 1613, at para 17:

Interim motions are intended to provide short-term stabilizing relief to allow parties to maintain their lives while waiting for a trial, at which there will be a more complete opportunity to fully present, canvas and test all of the evidence. If our court system goes to great lengths to offer early trial dates, parties should take advantage of this – rather than letting files sit dormant and then asking that judges make extremely complicated determinations based on imperfect and inadequate affidavit evidence on a motion.

8The requests must be considered in light of the following factual background:

i. Ms. Crozier and Mr. Nolin are not married. They began co-habiting in January 2010. They separated in September 2022. Ms. Crozier is 37 years of age and Mr. Nolin is 43 years of age. ii. The children, Marlow Nolin (DOB: 19 Sept 2016) and Vivian Nolin (DOB 28 June 2021) live primarily with Ms. Crozier. Mr. Nolin has parenting time on alternate weekends from Friday at 6:00 p.m. until Sunday at 7:30 p.m. and every Wednesday from 5:30 p.m. until 7:30 p.m. iii. The parties have de facto joint decision-making responsibility. iv. Mr. Nolin has paid child support, spousal support and contributed to s. 7 expenses for many of the months since the parties’ separation in September 2022. Specifically, until about September 2023, he paid $1,471 in monthly child support and $1,250 in spousal support based on an estimated income of $100,000. He has also contributed to section 7 expenses in the amount of $2,279 monthly to cover school and daycare expenses. However, he has not always made the payments on time, and since September 2023, Mr. Nolin has reduced his support payments and been more sporadic with respect to how and when they are made. v. Ms. Crozier commenced the Application in March 2023. vi. Mr. Nolin has been self-employed since 2017 at Automotive Outfitters. Ms. Crozier alleges that he has at least two other businesses from which he derives an income that he has not reported on his financial statement or to Revenue Canada.

Decision-Making

9Ms. Crozier seeks sole decision-making responsibility. Mr. Nolin opposes that request. Ms. Crozier says that Mr. Nolin is unresponsive when she tries to engage with him about vacation planning, the children’s health, schooling issues and other important child-related issues. She says he misses appointments with the teachers at school. Ms. Crozier says that Mr. Nolin signed the oldest child, Marlow, up for soccer when he does not want to go.

10Mr. Nolin states that Marlow does, in fact, want to go to soccer. He states that he has cooperated fully in scheduling summer camps and is completely responsive to requests for input when he is provided with enough time to respond. He states that he has been able to enroll Vivian, age 2, in daycare and get Marlow the medical and psychological attention he needs to deal with his ADHD. He states that the parties have been able to register the children for extra-curricular activities.

11The governing test for determining decision-making responsibility is the child’s best interests: Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am (“CLRA”).

12The best interests of the child framework requires primary consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss 24(1) and (2). However, s. 24(3) lists additional factors that must also be considered.

13Courts must be careful in making decisions on interim requests for exclusive decision-making responsibility. These motions are based on limited evidence and as this case demonstrates, the evidence is often in direct conflict, making determinations inherently difficult. Furthermore, awarding decision-making on a temporary basis at this stage may establish a status quo that will be difficult to change at trial.

14As in the case of Soucy v. Chan, 2022 ONSC 3911, it may well be that the final determination of this matter will be that it is in the children’s best interests for one parent, or the other, to have a final say over medical, health or other decisions for the children. But I cannot determine this on an interim motion, on the limited evidentiary record before me. A trial judge is better suited to make determinations about decision-making responsibility since it allows the parties to cross-examine evidence and grasp a more detailed and accurate picture of the evidence in light of conflicting narratives. (see also: Southern v. Ree, 2019 ONSC 1298)

15There may be problems with the decision-making as it exists now, but the standard of perfection is not used to assess parents’ ability to make decisions. The question is whether the important decisions about the children’s well-being are being made. I see no evidence to suggest at this point that the parties are unable to make important decisions together, such that the joint decision-making responsibility should be changed. Ms. Crozier’s request for interim sole decision-making responsibility is therefore denied.

Parenting Time

16The parties have agreed to the parenting time schedule. Mr. Nolin is to have parenting time with the children as follows:

(a) Alternate weekends from Friday at 6:00 p.m. to Sunday at 7:30 p.m.; and (b) Every Tuesday and Wednesday from pick-up at school and daycare until 7:30 p.m.

Child Support

17Ms. Crozier is currently receiving child support on a somewhat sporadic basis, based on Mr. Nolin’s estimated income of $100,000. Mr. Nolin says that after separation, he was uncertain of his income and so he opted to err on the side of caution and estimated it to be higher than it actually is. He has since obtained an income valuation report, prepared by Marc-Andre Richer dated June 28, 2023, which apparently shows that his income from all sources is only $89,000 from a company he says he owns called Automotive Online. He seeks to have his child support payments reduced to account for this lower income.

18For her part, Ms. Crozier asserts that Mr. Nolin’s income is actually more in the order of $150,000 or even more. She requests that the court impute an income of $150,000 to Mr. Nolin. Ms. Crozier states that Mr. Nolin has several other companies from which he derives revenue that he is hiding. She notes that he has listed a numbered company in his financial statement that he says he owns. She has been requesting for some time that he produce a financial statement from this company to determine if he is deriving an income from it. He has not produced that statement despite being asked to do so. Ms. Crozier also states that Mr. Nolin is living a lavish lifestyle and wearing designer clothes.

19Ms. Crozier’s allegations, which are denied by Mr. Nolin, are not, in my view, sufficient to prove how much additional money through other businesses Mr. Nolin might be earning. Ms. Crozier is seeking further disclosure to enable her to prove that Mr. Nolin’s income is higher than he is stating. That is a fair request, which I will deal with later in these reasons.

20However, I am not prepared at this time, to impute additional income to Mr. Nolin on the basis of the evidence presented to me today. There is simply insufficient evidence upon which to determine that Mr. Nolin is earning $150,000. The case law is clear that judges cannot simply accept an arbitrary number and impute that to a party’s income; the decision to impute income by a certain amount must be based on sufficient evidence of the appropriate amount. [1] Ms. Crozier says that the specific amount of $150,000 may be deduced from Mr. Nolin’s financial statement in which he claims to have approximately $150,000 in yearly expenses. However, Mr. Nolin also swore in his financial statement that he has a partner with whom he is living with who earns $75,000 per year and who contributes about 50% to the expenses. Therefore, this evidence does not establish that Mr. Nolin has an income of at least $150,000.

21Neither am I prepared to reduce Mr. Nolin’s income to $89,581 at this time. In his Financial Statement of August 4, 2023, Mr. Nolin stated that his income was $105,626.40/year.

22Granted since then, Mr. Nolin has produced an income valuation report (the Richer Report) and has updated his Financial Statement to reflect an income of $89,581. However, Ms. Crozier has provided contradictory evidence that Automotive Outfitters Ltd is his only source of revenue. She states that during their cohabitation, Mr. Nolin bragged about making cash money from his other businesses and offered to buy her expensive items with this cash. Ms. Crozier says that Mr. Nolin’s refusal to provide the financial statements for his other companies belies his claim that he is not earning an income from them.

23Mr. Nolin has not provided his Notice of Assessment for 2023 or 2022. He has provided a T4 from his business, which indicates that he earned $87,581.23 in 2023 from Automotive Outfitters. However, this does not indicate whether there was income from other sources in 2023.

24Mr. Nolin asserts that the Richer Report clearly establishes that his income is only $89,000 for 2023. However, Mr. Richer’s report leaves a number of questions unanswered. At this point, it is hearsay evidence only and has not been tested under cross-examination. One question that arises relates to the selling of what Mr. Nolin claims was his own automotive equipment to Automotive Outfitters Limited. That equipment was apparently sold for $297,000. However, the equipment was acquired during the time the parties were cohabiting and Ms. Crozier was a 25% partner in Mr. Nolin’s business. Was Ms. Crozier entitled to a share of the proceeds of the sale of the assets to the newly incorporated company?

25Mr. Nolin states in his affidavit that his corporation took out a loan of $235,000 in 2022 from BDC and used the proceeds to repay part of the $297,000 for the equipment. He states that the money was owed to him personally, but as noted above, there is a question as to whether part of the proceeds of the sale should have gone to Ms. Crozier.

26Furthermore, there is another company listed on Mr. Nolin’s personal financial statement - the numbered company 789130515 RT10001 - which is described as a partnership and listed for a value “to be determined”. Ms. Crozier states that she has asked repeatedly for the valuation of this business to be provided and has received no response. That partnership may well be the partnership in which Ms. Crozier held a 25% interest and may be the company that owned the assets that were sold to Automotive Outfitters.

27We do not know whether Mr. Nolin earned any income from the numbered company in 2022 and 2023 because the authors of the Richer Report did not have Mr. Nolin’s tax information for these years.

28Given the questions I have about Mr. Nolin’s business interests, income and asset ownership, I find that the Richer Report does not provide a solid evidentiary basis for attributing an income of $89,000 to him at this time. Therefore, I am not prepared to find that Mr. Nolin’s income, for interim child support purposes, is $89,000; that determination must await trial.

29Mr. Nolin’s earlier estimate of $100,000/year is a more reasonable estimate of his yearly income in my view. This is because there may be other sources of income, based on Mr. Nolin’s own financial statement, which may not have been taken into account in the Richer Report. In the absence of NOAs for 2022 and 2023, I find that Mr. Nolin’s previous estimate, which is reflected in his August 2023 Financial Statement, is the best evidence of his income available at this time.

30Therefore, effective November 13, 2023, when the Notice of Motion was served by Ms. Crozier and on a temporary basis, Mr. Nolin is ordered to pay child support based on an income of $100,000.

31Since Mr. Nolin does not meet the threshold of 40% parenting time, Ms. Crozier’s income is not relevant to the calculation of Mr. Nolin’s child support payments.

32According to the Child Support Guidelines, O. Reg. 391/97, with an income of $100,000/year, the child support Mr. Nolin must pay for two children is $1,471/month. He is ordered to pay this amount on an interim basis effective November 2023. Adjustments to the child support payments may be made at trial, when the judge will have the benefit of oral testimony and a more complete evidentiary record.

Spousal Support

33Section 33(8) of the Family Law Act, R.S.O. 1990, c.F.3, states that an order for spousal support should:

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial home)

34Spousal support can be compensatory, based on the economic circumstances of each spouse’s role during the marriage, non-compensatory, based on financial need where a spouse cannot become self-sufficient, or contractual based on an agreement between the parties (see: Bracklow v. Bracklow at para 15)

35If there is a finding of entitlement to spousal support, then the court must take into account the factors set out in s. 33(9) of the Family Law Act.

36In Delongte v. Delongte, 2024 ONSC 3454, this court held that on interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support. However, in a motion for temporary spousal support, the claimant does not have to prove entitlement on the balance of probabilities as he or she would have to at trial. He or she need only show a prima facie case for entitlement.

37The purpose of an interim order for spousal support is to maintain the accustomed lifestyle pending trial.

38Immediately following separation, Mr. Nolin acknowledged that Ms. Crozier was not working and that she required support from him for a limited time. He paid $1,471 in monthly child support and $1,250 in monthly spousal support totalling $2,721. Further, Mr. Nolin contributed $2,279 some months toward school and daycare expenses. He also paid Ms. Crozier $5,000 for September 2022, when he says they were not separated and five months of salary from the business after they separated.

39However, it is his position that Ms. Crozier no longer has support entitlement because providing her with support has prevented her from seeking employment and becoming self-sufficient. Mr. Nolin states that Ms. Crozier has not presented any real attempts to finding employment.

40Mr. Nolin states that an income of $34,000 should instead be imputed to Ms. Crozier. He states that she is capable of working. She is only 37 years of age, and the children are in care full days.

41I do not accept Mr. Nolin’s arguments that an income of $34,000 should be imputed to Ms. Crozier. Ms. Crozier provided persuasive evidence that there are only approximately 5.5 hours in the day during which she can work. Although the children are in school or daycare from 8:30 pm to 3 pm, Ms. Crozier transports them to and from daycare and school. This reduces the time she has available to work. In addition, when the children are sick, it is Ms. Crozier who stays home with them.

42Ms. Crozier has started to clean houses to earn income. She states that she is no longer receiving Ontario Works. In 2023, she earned $8,461, which is below what she is prepared to accept as an imputed income.

43I find it would be unreasonable to attribute an income of $34,000 to Ms. Crozier at this time. She is the children’s main caregiver and is required to stay home with them when they are sick. I find that the imputed income of $25,000 for Ms. Crozier is reasonable at this time. Ms. Crozier is building a base of clients for her house-cleaning business and thinks she will be able to improve on her income of $8,461 in 2023. I accept this information as a sufficient evidentiary basis upon which to base the imputation of $25,000 as Ms. Crozier’s income.

44Furthermore, the courts have stated that, at the interim stage, the need to achieve economic self-sufficiency is of less significance. The goal is to maintain the lifestyle that the parties had prior to separation. The evidence on the motion convinces me that Ms. Crozier’s lifestyle is well below what it was prior to separation.

45Ms. Crozier stayed home with the children for the duration of the parties’ relationship. She was the caregiver and homemaker. She is still the primary caregiver for the children. One of them has ADHD. She does not have the qualifications to obtain a well-paying job. Ms. Crozier states that she is experiencing financial hardship and has had to pawn some of her possessions to pay for her needs and those of the children. I find that a prima facie case for Ms. Crozier’s entitlement to interim spousal support has been made out, based on Mr. Nolin’s income of $100,000/year and Ms. Crozier’s imputed income of $25,000.

46I further find that Mr. Nolin should pay spousal support in the mid-range of the Spousal Support Advisory Guidelines [2]. This is based on the evidence of Ms. Crozier’s role in the home prior to separation, the parties’ current incomes and Ms. Crozier’s current role as primary parent.

47However, the court is also required to take into account the amount and proportion of section 7 expenses that the spousal support payor is paying when determining the quantum of spousal support. For the reasons that follow regarding the parties’ section 7 expenses, it is not possible to determine the quantum of spousal support at this time. I encourage the parties to attempt to resolve this issue, perhaps with the assistance of a mediator.

Section 7 Expenses

48The evidence on s. 7 expenses was not clear. Ms. Crozier stated in her supplementary affidavit that she paid the children’s daycare and private school expenses for five months after separation. She stated that these expenses were approximately $2,243.89 per month. Mr. Nolin disputed Ms. Crozier’s statement and said that he paid for the childcare expenses.

49At the motion hearing, Ms. Crozier appeared to concede that Mr. Nolin had made contributions to past childcare expenses. However, it was not clear whether Mr. Nolin paid all the childcare expenses, whether he has continued to pay all or some of the childcare expenses and how much those expenses currently are. Furthermore, there are tax issues with respect to childcare expenses that were not addressed during the motion.

50Based on Mr. Nolin’s income of $100,000/year and Ms. Crozier’s income of $25,000/year, the proportion of s. 7 expenses would be 80% and 20% respectively.

51The parties may be able to use the conclusions in this decision to resolve the issue of s. 7 expenses, which will then assist them in determining the appropriate quantum of spousal support. The assistance of a mediator may be helpful if they are unable to agree.

52Adjustments may subsequently be made at trial, where the judge will have a more robust evidentiary basis upon which to make a determination about the quantum of spousal support that may be owed. As noted above, at this stage in the process, the court is simply making a temporary order to stabilize the parties’ situation until a final determination can be made at trial. However, the evidence is not presently sufficient to make an order with respect to the quantum of spousal support.

53Ms. Crozier provided a list of past s. 7 expenses for which Mr. Nolin’s contribution is sought. At the hearing, Ms. Crozier indicated that the requirement for Mr. Nolin’s contribution to Marlow’s school fees can be removed from the list of items. In addition, Marlow’s ADHD assessment costs can be removed. These issues have been resolved. However, Ms. Crozier requires a proportional contribution from Mr. Nolin for Marlow’s ADHD treatment and camp fees as well as the children’s extracurricular activities.

54I find that the expenses for Marlow’s ADHD treatment and camps are special expenses, which are to be shared by the parties in proportion to their incomes. I order that Mr. Nolin contribute to 80% of these expenses, if he has not already done so.

55It appears also that the parties have agreed to the shared payment of extra-curricular activities. However, I would caution that the expenses relating to extra-curricular activities in the future should be agreed upon between the parties prior to incurring the expense.

Disclosure

56Ms. Crozier has requested that Mr. Nolin conduct another income valuation, at his own expense, which would include potential revenue from all of the businesses in which Mr. Nolin has an interest.

57I find however, that it is more appropriate for Ms. Crozier to retain her own expert to conduct an income valuation, if she intends to dispute the valuation provided by Mr. Nolin. The ultimate responsibility for paying the cost of that expert may be argued at trial.

58Mr. Nolin must provide all documentation needed for Ms. Crozier to obtain an income valuation. Mr. Nolin states that several of the companies to which Ms. Crozier refers are no longer active and do not produce an income. Mr. Nolin must provide evidence of the state of corporate affairs in the form of financial statements and bank statements from the following entities from 2022 to present:

1. Automotive Outfitters: BIN 271104275; CON: 3319613;
2. Carandtruckaccessories.com;
3. AOOnlineSales (legal name Renaud Nolin) Amazon Services Seller Central;
4. Beaver Moon Project.

59In the event that there are no such documents, Mr. Nolin must provide an affidavit attesting to that fact.

60Mr. Nolin admits that he has not disclosed the documents that were provided to Richer and Associates for the Income Valuation Report. He must provide all such documents to Ms. Crozier immediately.

61Mr. Nolin states that his Tax-Free Savings Account Holdings are irrelevant to the issues in the present Application because it is his personal account and Ms. Crozier has no claim to the account. Ms. Crozier has a right to the account statements for the past three years to determine whether Mr. Nolin’s claim that she has no entitlement to them are valid. Mr. Nolin must disclose statements from the TFSA for the past three years.

62To the extent that he has not already done so, Mr. Nolin must provide his personal and corporate bank statements for the last three years.

Updated Financial Statements

63Both parties are to produce updated Financial Statements along with their 2022 and 2023 NOAs and Income Tax Returns if they have not already done so.

Costs and Orders

64Success on this motion was divided but was slightly in Ms. Crozier’s favour. While she is self-represented at this time, that does not disentitle her to costs. I find that costs in the amount of $500 to be paid by Mr. Nolin to Ms. Crozier are appropriate and reasonable in the circumstances.

65Mr. Nolin still owes Ms. Crozier $2,000 in costs from the motion before Justice Summers. He must pay that amount to Ms. Crozier plus the $500 in costs I have ordered in the present motion within two weeks of the date of this decision.

66I make the following interim orders:

1. The parties shall have joint decision-making responsibility for the children.
2. Mr. Nolin is to have parenting time with the children on the following schedule: (a) Alternate weekends from Friday at 6:00 p.m. to Sunday at 7:30 p.m.; and (b) Every Tuesday and Wednesday from pick-up at school and daycare until 7:30 p.m.
3. Mr. Nolin will pay child support in the amount of $1,471/month on the first day of every month, effective November 2023.
4. Mr. Nolin will pay spousal support to Ms. Crozier at the mid-range of the Spousal Support Advisory Guidelines. The parties will determine the quantum of spousal support, based on the children’s s. 7 expenses, Mr. Nolin’s income of $100,000, Ms. Crozier’s income of $25,000 and child support payments by Mr. Nolin of $1,471/month.
5. Mr. Nolin will pay 80% of s. 7 expenses and Ms. Crozier will pay 20% of s. 7 expenses.
6. Mr. Nolin will pay 80% of Marlow’s ADHD treatment and 2024 camp expenses, as well as the children’s past extra-curricular activities, if he has not already done so.
7. Mr. Nolin must provide evidence of the state of corporate affairs in the form of financial statements and bank statements from the following entities from 2022 to present:
   1. Automotive Outfitters: BIN 271104275; CON: 3319613;
   2. Carandtruckaccessories.com;
   3. AOOnlineSales (legal name Renaud Nolin) Amazon Services Seller Central;
   4. Beaver Moon Project.
8. In the event that there are no such documents, Mr. Nolin must provide an affidavit attesting to that fact.
9. Mr. Nolin must provide Ms. Crozier with the documents that were provided to Richer and Associates for the Income Valuation Report.
10. Mr. Nolin must disclose the bank statements from the TFSA for the past three years.
11. To the extent that he has not already done so, Mr. Nolin must provide his personal and corporate bank statements for the last three years.
12. Both parties are to produce updated Financial Statements along with their 2022 and 2023 NOAs and Income Tax Returns if they have not already done so.
13. Mr. Nolin is to pay Ms. Crozier $2,500 in costs for the present motion and the motion before Justice Summers within two weeks of the date of the present decision.

Justice K.A. Jensen Date: August 2, 2024

[1] Drygala v. Pauli, (2002), 61 O.R. (3d) 711 (Ont. C.A.), at para 44. [2] prepared for the Department of Justice Canada, July 2008, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html