Court File and Parties
CHATHAM COURT FILE NO.: 9214/01 DATE: 20160628 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LYNNE OUELLETTE, now known as LYNNE SAWYER Applicant, Respondent Party – and – CHAD OUELLETTE Respondent, Moving Party
Counsel: Brad Langford, for the Applicant, Respondent Party Stanley Mayes, for the Respondent, Moving Party David Maslak, for Family Responsibility Office
HEARD: October 8, 2015 and April 8, 2016
CAREY J.
Overview
[1] This was a trial to determine what arrears, if any, were owed by Chad Ouellette (“Mr. Ouellette”) for child support to his former wife.
[2] Mr. Ouellette’s motion was for a declaration that there were no arrears owing for child support and that he had in fact overpaid.
[3] Lynne Ouellette (“Ms. Sawyer”) took the position that her former husband should be responsible for child support amounts as set out in the separation agreement based on his former income. Her position was that although she accepted he was no longer working at Navistar, the employment that the support figures were based on. However, his failure to update her with material confirming his employment status disentitled him to a reduction.
[4] As well, based on Mr. Ouellette’s past earning potential and indications of working for cash she argued that he should be imputed a higher income than he was claiming.
[5] This trial commenced in October, 2015 and resumed in April, 2016 for its completion.
Evidence of Respondent Moving Party
[6] Mr. Ouellette was ill prepared to give evidence. He had little in the way of documentation and it was clear from his evidence that he had been procrastinating in moving to get the order changed, as well as in providing documents and paperwork to support those changes. Frustration and exasperation on the part of Ms. Sawyer was understandable.
[7] Having said that, Mr. Ouellette impressed me as essentially honest and attempting to be truthful. I accept that generally he made Ms. Sawyer aware of his employment situation and his attempts to find work. I accept his evidence about his employment with Mid-South Electric on the solar farm and his employment with Impressive Flooring. He appeared honest as to the cash work that he did do as a handyman and I cannot find any reason to reject his evidence and the estimate of the cash he received for those small jobs. The employment searches that he related struck me as reasonable. He related applying for job opportunities on a regular basis throughout Southwestern Ontario. Given that he had no special training, diplomas or degrees, I find his search for work was appropriate. I accept that his relationship with his children was important and in all of the circumstances his explanations about not searching for work “out West” were reasonable.
Evidence of Applicant Responding Party
[8] Ms. Sawyer was generally a credible witness whose evidence suffered from her inability to be balanced in her assessment of her former husband and his relationship with the children and his dealings with her. I found her evidence about his ability to do other work and a belief that he was making money “under the table” to be unsupported by any evidence and speculative at best.
[9] I was unable to understand her rationale for signing an affidavit with the Family Responsibility Office based on an income for much of the period that she knew he was no longer earning at Navistar. The fact that she did not have written confirmation of certain aspects of his employment or unemployment did not remove from her the necessity, when swearing the affidavit, to be truthful to the best of her ability.
Analysis
[10] The responding party’s position is that the moving party did not always conform with his obligations under the Separation Agreement, that he came to the court “without clean hands” and essentially forfeited his right to have the arrears reduced. I cannot accept that proposition. The Separation Agreement did not set out that presumption and it is not correct in law. Costs sanctions for motions to enforce the agreement would certainly be an appropriate option. Filing an inaccurate affidavit was not.
[11] I am unable to accept, as well, Ms. Sawyer’s position about both imputed income to Mr. Ouellette and the likelihood that he was untruthful about the cash he received for jobs done as a handyman. The evidence of Mr. Ouellette was straightforward and detailed. The position of Ms. Sawyer was based on speculation and, in my view, a degree of animosity towards the moving party.
Conclusion
[12] In the result, I find that Mr. Ouellette has persuaded me that his arrears, as recorded by the Family Responsibility Office, should be reduced to zero. I have not been persuaded that he has made an overpayment.
[13] These proceedings were about support for the children and both parties’ behaviour contributed to the necessity for a trial. There will be no order as to costs.
“original signed and sealed, Carey J.” Thomas J. Carey Justice
Released: June 28, 2016
CHATHAM COURT FILE NO.: 9214/01 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LYNNE OUELLETTE, now known as LYNNE SAWYER Applicant, Responding Party – and – CHAD OUELLETTE Respondent, Moving Party REASONS FOR JUDGMENT Thomas J. Carey Justice