Reasons for Judgment

COURT FILE NO.: FC-09-2433-5 DATE: 20181126 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Francine Michelle Marie Boily, Applicant AND: Christopher John Eaton, Respondent

Counsel: Aaron MacKenzie, Counsel for the Applicant Fan MacKenzie, Counsel for the Respondent

HEARD: July 17, 2018

Justice Engelking

[1] This is, in essence, Part II of the Applicant, Ms. Boily’s Motion to Change the Divorce Order of Justice Polowin dated February 13, 2012 with respect to the issues of child and spousal support. Ms. Boily filed this Motion to Change on October 6, 2014, and on March 16, 2017 it was granted in part by Final Order of Justice Sheard, in particular as it related to child support arrears between January 1, 2012 and December 31, 2015, and on-going child support as of January 1, 2016, subject to adjustment upon receipt of proof of income. Justice Sheard did not deal with spousal support at that time, but ordered that should Ms. Boily seek to pursue an order for retroactive spousal support, she could bring a motion on specific terms to do so. This is that motion: in it, Ms. Boily seeks an order for retroactive and on-going spousal support, as well as child support adjustments from January 1, 2016 forwards as per paragraph 2 of Justice Sheard’s Order of March 16, 2017.

[2] For reasons which will not be explained in this decision, the issue of what child and spousal support, if any, is owing from separation to December 31, 2011 was directed by the court to a Trial of An Issue. A decision in relation thereto will be released separately.

[3] The Divorce Order of Justice Polowin dated February 13, 2012 provided as follows at paragraphs 5 and 6:

5. The Respondent shall pay to the Applicant child support for the three children fixed in the amount of $591.00 per month, based on the Respondent’s 2010 Line 150 income assessed by CRA in the amount of $30,000.00, such support to commence February 1, 2012. Child support shall be reviewed annually and adjusted retroactively, such that if the Respondent’s 2011 Line 150 income is greater than 2010, he shall pay the difference required for each month by way of a lump sum to the applicant by July 1st each year, once the assessed Line 150 amount for the previous year is known. The respondent shall provide his personal and corporate tax returns and Notices of assessment to the applicant by June 1st each year, thus allowing 30 days for the retroactive calculation to be made. Special expenses shall be shared proportionate to income upon the production of invoices. No such special expenses exist as of this date. The income of $30,000.00 set out above shall be confirmed by the production of the Respondent’s 2011 tax return and notice of assessment, when available.

6. There shall be no spousal support payable at this time, however this issue may be reviewed in the event the Respondent earns more than set out in paragraph 5 above.

[4] In her order of March 16, 2017, Justice Sheard found as follows at paragraphs 1 and 2:

1. In accordance with paragraph 5 of the Order of Polowin, J. made February 13, 2012, (the “Polowin Order”), and based on the income of the respondent father, Christopher John Eaton (the “Father”) as agreed to by the Father and applicant mother, Francine Michelle Marie Boily (the “Mother”) child support for the three children of the marriage, namely Sarah Nathalie Eaton, born September 22, 2001, Emilie Rachel Eaton, born June 6, 2004, and Olivia Nicole Eaton born October 6, 2006 payable by the Father, to the Mother shall be adjusted retroactively and payable as follows:

(i) Effective January 1, 2012, the Father shall pay child support for the three children fixed in the amount of $3,315.43 per month, based on the Father’s 2012 income of $198,919;

(ii) Effective January 1, 2013, the Father shall pay child support for the three children fixed in the amount of $2,746.53 per month, based on the Father’s 2013 income of $159,411;

(iii) Effective January 1, 2014, the Father shall pay child support for the three children fixed in the amount of $1,472.12 per month, based on the Father’s 2014 income of $76,562;

(iv) Effective January 1, 2015, the Father shall pay child support for the three children fixed in the amount of $896.64 per month, based on the Father’s 2015 income of $46,896;

2. Effective January 1, 2016, and subject to adjustment, if required, when the Father has provided the Mother with confirmation of his 2016 income, the Father shall pay child support for the three children fixed in the amount of $591 per month, based on his stated 2016 income of $30,000.

[5] Having therefore fixed the amounts of Mr. Eaton’s income for the years 2012 through to 2016, the latter being subject to adjustment with proof of income, Justice Sheard also provided in paragraph 9 of her order as follows:

9. Should the Mother seek to pursue an order for retroactive spousal support, she may bring this motion back before me on the following terms:

i) The Mother shall serve and file a supplementary affidavit setting out the following additional information;

a) the dates on which the Mother stopped working or reduced her employment in order to provide homemaking care;

b) details about the Mother’s income earned in the years during which she asserts she reduced or stopped working outside the home;

c) details about the tax consequences to the Father, should he be ordered to pay a retroactive spousal support but not entitled to a tax deduction for such spousal support;

d) the DivorceMate (or like) calculations that have calculated child [sic] support when no tax deductions are allowed to the payor spouse and also taking into consideration in [sic] the amount of retroactive child support to be paid by the Father as per the terms of this Order.

[6] Ms. Boily filed affidavit evidence in this proceedings which provides that she ceased working outside the home in 2006 once Mr. Eaton commenced his medical career. Her evidence is that she cared for the three children of the marriage and ran the household, while Mr. Eaton worked long hours in an effort to advance his career.

[7] Ms. Boily also provided evidence and her Notices of Assessment which revealed that her Line 150 income over the years was as follows:

• 2012 - $8,334;
• 2013 - $10,258;
• 2014 - $20,032;
• 2015 - $10,394; and,
• 2016 - $16, 551.

[8] Ms. Boily estimated that her net income for 2017 and 2018 would be approximately $20,000.

[9] Ms. Boily takes the position that she is entitled to retroactive spousal support for the years 2012 to 2017, and on-going spousal support bases on both compensatory and non-compensatory grounds.

[10] Mr. Eaton takes the position, on the other hand, that Ms. Boily is not entitled to spousal support, on either ground, or, if there is some entitlement to spousal support, it has been satisfied by his contribution of $23,000 to a retraining course in 2009, and his support of the household early in the separation. He argues that the relationship was only 10 years in duration, that Ms. Boily did not forego economic opportunities or career advancement for the sake of the relationship, and that she is perfectly capable of becoming self-sufficient. His alternative position, in the event that the court finds entitlement to spousal support, is that income should be imputed to Ms. Boily either by way of some of the expenses of her childcare business being properly added back into her income for support purposes, or by attributing to her the income she would have been expected to achieve had she followed through with her training course and certified as a cardiologist technician.

Background Facts

[11] The parties began residing together in or about March of 1999. They had the above noted three children between 2001 and 2006. They married in August of 2008 and separated on September 24, 2009.

[12] When the parties met, Mr. Eaton was in medical school and Ms. Eaton had just finished high school. She worked at several part-time jobs before the children were born and also worked part-time as a school bus driver between children. Ms. Boily did not pursue a post-secondary education between finishing high school and having her first child in 2001. After the parties’ third child, Olivia, was born in 2006 and once Mr. Eaton began to practice medicine, Ms. Boily stopped working externally and, according to her evidence, provided primary care to the children and looked after the home.

[13] Starting in 2007, Mr. Eaton’s corporation, through which his OHIP and other earnings flowed, began to pay Ms. Boily employment income and dividends as an income splitting measure. In 2007, her Line 150 income was $151,250, in 2008 it was $260,375 and in 2009 it was $198,340. These sums were much higher than any income Ms. Boily had ever made in her part-time work. In 2009, Mr. Eaton began to experience significant health issues which resulted in him working less and making less money. In September of that year, the parties separated. By March of 2010, Mr. Eaton declared bankruptcy, and corporation ceased to operate.

[14] Prior to separation, Ms. Boily had registered for a course through which she would gain certification as a cardiologist technician. Post-separation, Mr. Eaton paid for the tuition for the course, which was $23,000. Ms. Boily attended for questioning on February 19, 2010, during which she indicated that once certified, she could make approximately $23,000 per year part time, and $58,000 per year fulltime. She also indicated that work in that field was easy to attain in Ottawa. At questioning, Ms. Boily confirmed that the two older children were in school fulltime and the youngest was in daycare fulltime at this point. Ms. Boily has, however, never pursued employment as a cardiologist technician, nor has she ever responded to Mr. Eaton’s counsel’s request for an explanation as to why not.

[15] At some point post-separation, Ms. Boily began operating a daycare business from her home. Since 2011, she has been claiming significant business expenses for her daycare for CRA purposes, which have, of course, been reflected in her Line 150 income. Mr. Eaton argues that they are extravagant and, unless they are appropriately explained by Ms. Boily, which they have not been, would have to be added back into her income for support purposes, if she is entitled to spousal support. According to Mr. Eaton, Ms. Boily also has a business as a “Lead Consultant” selling “Jamberry”, for which she declares no income.

[16] From the time of the onset of his illnesses in 2009, which included a seizure disorder and addiction, Mr. Eaton’s ability to work fluctuated. He worked reduced hours in late 2009 and early 2010, and then was on disability from mid-2010 and continued to be off of work to the end of 2011. His income in 2010 was $65,000 and in 2011 was $1708. Mr. Eaton resumed working in 2012 and later turned out to have earned the $198,919 reflected in his 2012 Notice of Assessment and identified by Justice Sheard in her order of March 16, 2017. Mr. Eaton’s evidence was that he had been off work for some time immediately prior to the Polowin J. order in February of 2012, and $30,000 was his best guestimate of what he thought he might earn (on disability).

[17] By April of 2015, Mr. Eaton was again unable to work; a plan for him to resume work part-time was approved by the Ontario Medical Association (OMA) in June of 2017, but it was his evidence that he did not return to paid employment until January of 2018. [1] Indeed, Mr. Eaton’s evidence was that he had received a Notice of Reassessment for 2015 [2], a copy of which is attached to his Financial Statement sworn June 17, 2018 [3] which provided that his Line 150 income was actually $26,281.00 as opposed to the $46,896 set out by Justice Sheard.

[18] In her Motion to Change, Ms. Boily seeks a lump sum award of “retroactive” spousal support from January 1, 2012 up to December 31, 2017, (this motion having been heard in July of 2018) and on-going support thereafter.

Analysis

Spousal Support

[19] Section 15.2 of the Divorce Act [4] provides that a court may make an order for a spouse to pay periodic or lump sum spousal support. Section 17 of the Act provides that a court may make an order varying, rescinding or suspending a support order prospectively or retroactively. Subsection 17 (4.1) provides that a court needs to satisfy itself that a change in the condition, needs, means or other circumstances of a spouse has occurred since the last order before making a variation order. Subsection 17(7) sets out the objectives of an order varying a spousal support order as follows:

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse with a reasonable period of time.

[20] In this case, Ms. Boily was clearly advantaged by the marriage; she went from having no post-secondary training and part-time income in 1999 to a six-figure income by 2007. She was, however, also correspondingly disadvantaged by the breakdown of the marriage.

[21] While Mr. Eaton disputes that Ms. Boily is entitled to spousal support on the basis that she did not sacrifice education or advancement in a career for his or the family’s sake, the fact of the matter is that the couple had three children in very quick succession between 2001 and 2006, all at a time when Mr. Eaton was qualifying to become a medical doctor. He then started his practice in 2006, and it seems logical that Ms. Boily’s availability to care for the children and the home in those early years assisted Mr. Eaton by permitting him to focus on his goals. This is, moreover, not an application de novo; it is a variation. The Divorce Order of Justice Polowin of February 13, 2012, contemplated entitlement to spousal support, likely with elements of both compensation and need, though none was payable at the time.

[22] Both parties suffered economic hardship from not so much the breakdown of the marriage, but the breakdown (medically and functionally speaking) of Mr. Eaton. Post mid-2009, Mr. Eaton ceased to make the kind of income he had from the commencement of his practice until mid-2009. Mr. Eaton did get back on his feet again from the beginning of 2012 until April of 2015. In 2012, Mr. Eaton earned “more than set out in paragraph 5” of the Polowin order. I find the fact that Mr. Eaton’s actual income was significantly greater than the $30,000 identified in paragraphs 5 and 6 of Justice Polowin’s order constitutes a material change in circumstances, and Ms. Boily is thus entitled to have it reviewed.

[23] The last objective of subsection 15.2 (6), of the Divorce Act is to promote the economic self-sufficiency of, in this case, Ms. Boily, within a reasonable period of time. Shortly after separation, Ms. Boily engaged in a training program, for which Mr. Eaton paid, to become a cardiologist technician, a profession which would have garnered her an annual income of approximately $58,000. She, however, did not pursue employment in this field, and in or about 2011, she started a home daycare. The annual gross income of her daycare fluctuated, but over 2012 and 2013 it averaged at approximately $42,000.

[24] Ms. Boily’s evidence was that she started her daycare business “following our separation due to immediate need to provide financially for our children, and to be home for them as they were ages 4, 5 and 9 yrs [sic] at the time. I have continued this long due to financial need and limited alternative employment options.” [5] However, as I have indicated above, during questioning on February 19, 2010, Ms. Boily confirmed that the two eldest children were in school fulltime and the youngest was in daycare fulltime. [6] Additionally, as was also indicated above, despite having been repeatedly asked by Mr. Eaton’s counsel to provide an explanation as to why she did not pursue employment as a cardiologist technician, Ms. Boily has never done so. [7]

[25] Mr. Eaton additionally takes issue with Ms. Boily’s request for an order of on-going spousal support, arguing that Justice Sheard’s order limited her to retroactive support. While it is true that Justice Sheard’s order contemplated Ms. Boily moving for retroactive support (ie. to the end of 2016), as opposed to on-going support, her actual Motion to Change filed in 2014 sought both retroactive and on-going support. A final order on her Motion to Change in this regard has not yet been made, and I will thus make it.

[26] While I find that Ms. Boily is entitled to an order of retroactive lump sum and on-going spousal support, I also find that it is appropriate to impute income to her during the operative years, either to account for what she could or should be making as a cardiologist technician, or by adding certain business expenses back in to her income for support purposes. Drygala v. Pauli [8] stands for the proposition that for support purposes one ought to be earning what one is capable of earning. Having no explanation as to why Ms. Boily did not pursue employment as a cardiologist technician, although presumably qualified to do so, one option would be to impute an annual income to her of $58,000, which was her own evidence of what she could make in that vocation, from 2011 forwards. The court does not have sufficient evidence, however, to find that Ms.Boily is actually capable of earning that. She is, however, clearly capable of earning an income through her daycare business, and another option, one which I adopt, is to add certain of her business expenses back into her income for support purposes.

[27] On March 11, 2015, Justice Mackinnon granted an order that Ms. Boily was to provide to Mr. Eaton disclosure of a “schedule of all expenses claimed for business since 2011, list of all bank accounts and balances, balance sheets for the business for 2011-2013”. Though some bank account transaction histories and her CRA “Statements for Business or Professional Activities” for Gardarie Les Petites Annees for 2011, 2012 and 2013 are contained in the Continuing Record, [9] she has never produced the ordered items for 2014, 2015 and 2016. Her CRA “Statement for Business or Professional Activities” for 2017 is also contained in the Continuing Record as an exhibit to one of Mr. Eaton’s affidavits. [10]

[28] In 2012, Ms. Boily declared a gross annual business income of $47,090 and business expenses of $35,489.75 as follows:

• Business tax, fees, licences, dues, membership, and subscriptions - $297
• Supplies - $10150.00
• Management and administration fees - $8000.00
• Rent - $8891.00
• Telephone and utilities - $537.00
• Motor vehicle expenses - $3868.20
• Capital cost allowance - $3746.55

[29] Additionally, in 2012, Ms. Boily reduced her income by $4,266 for “business use of home” expenses.

[30] In 2013, Ms. Boily declared a gross business income of $37,839 and business expenses of $24,988.81 as follows:

• Business tax, fees, licences, dues, membership, and subscriptions - $326
• Office expenses - $2629.76
• Supplies - $3706.65
• Rent - $9381.00
• Motor vehicle expenses - $3213.76
• Capital cost allowance - $5731.64

[31] In 2013, Ms. Boily also reduced her income by $2591.90 for “business use of home” expenses.

[32] In 2017, Ms. Boily declared a gross business income of $53,172.00 and business expenses of $37,545 as follows:

• Advertising - $199
• Meals and Entertainment - $6500
• Insurance - $1320
• Interest and bank charges - $162
• Office expenses - $200
• Office stationary and supplies - $200
• Rent - $26,964.00
• Repairs and maintenance - $1400
• Utilities - $600

[33] Mr. Eaton argues that Ms. Boily’s expenses are inconsistent, unexplained and extravagant, and while many of them may (or may not) be appropriate for CRA purposes, they need to be added back into Ms. Boily’s income for support purposes. On June 7, 2018 Mr. Eaton’s counsel wrote to Ms. Boily and requested the outstanding disclosure as per the order of Justice Mackinnon of March 11, 2015 for the years 2012 to 2016. On June 14, 2018, Mr. Eaton’s then counsel, Ms. MacKenzie, having located the 2011 to 2013 Statements for Business or Professional Activities in the CR, asked a series of questions of Ms. Boily concerning her claimed business expenses for those years. Ms. Boily answered none of them. The court, however, shares some of the same concerns identified as to the propriety of those expenses, at least as it relates to income for the purposes of support, such as: what are the office supplies of $2600 for a home daycare; what are the vehicle expenses of a home daycare; what percentage of square footage is the daycare compared to the home; what portion of the rent is attributed to the daycare, why is there $1400 of repairs and maintenance on a rental property, and so on.

[34] Section 19(1) of the Federal Child Support Guidelines is of assistance in that it provides that the court may impute income to a spouse in circumstances it considers appropriate, including where the spouse unreasonably deducts expenses from income. [11] Section 19(2) stipulates that “the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.”

[35] In discussing the issue of imputation of income in Monahan-Joudrey v. Joudrey [12], Justice Chappel stated at paragraph 31:

First, I emphasize that there is an obligation on the part of both parties in a support case to adduce the evidence required for the court to make a fair and reasonable assessment of their respective incomes for the purposes of the child support calculation. If they fail to do so, they run the risk of the court imputing income to them pursuant to section 19(1)(f) of the Guidelines.

[36] Further, at paragraph 34, Justice Chappel stated:

It is not appropriate for a party to request a judicial determination of their income, fail to provide the information required for the judge to do so, and then simply ask the court to “take their word for it” or to “take a wild guess” based on minimal information and hope for the best…If a party seeking to deduct business expenses from income fails to provide meaningful supporting documentation or other evidence in respect of those expenses, an adverse inference may be drawn by the court in making the income determination.

[37] When moving to the issue of spousal support, Justice Chappel relied on her findings regarding the Applicant’s income for child support purposes and imputed the same quantum of income to the Applicant for spousal support purposes.

[38] In Szitas v. Szitas [13], Justice Chappel, while again dealing with the issue of business expenses, stated at paragraph 60:

Where it is claimed that business expenses are being unreasonably deducted from income, the burden of proof is on the party claiming that expenses are unreasonable. However, the parent who seeks to deduct business expenses from his income for child support purposes cannot simply put forth numbers for alleged business expenses with no justification or evidence to support those numbers, and then put the other party to the expense of disclosure motions and questing in an effort to prove that the expenses are unreasonable. The party claiming the deductions as against income has an obligation to explain the reasons for the expenses and how they were calculated, and must provide documentary proof of the expenses in an organized manner so that the court can make a proper determination as to the reasonableness of the expense from the standpoint of the child support calculation. This obligation flows from the party’s general obligation to provide relevant information respecting their case, and to make full and frank disclosure of their financial situation in the context of a child support case. If the party seeking to deduct business expenses from income fails to provide meaningful supporting documentation or their evidence in respect of those deductions, an adverse inference may be drawn by the court in making the income determination.

[39] Justice Chappel proceeds in paragraphs 62 of Szitas to review case law regarding business deductions and finds: notional deductions for home office and promotional expenses with personal overtones were added back in [14]; personal benefit for food, motor vehicle and telephone expenses were added back in [15]; home office, car, utilities and capital cost allowances have been added back in because of their personal use aspects [16]; home office expenses have been added back in where the claimant had not adduced any evidence to establish that the cost of operating her business from home materially increased the cost of operating her household [17]; home office and vehicle expenses were added back in as a result of the personal benefit derived therefrom [18]; and, business expenses for meals and entertainment and a portion of cell phone, computer and internet expenses were added back in based on the personal nature of same [19].

[40] In the case at bar, Ms. Boily has provided no explanation as to the nature of her deduction of business expenses, and based on the above case-law, I am prepared to add a number of them back into her income for support purposes. These include her rent (in this I would include repairs and maintenance of a rental property), motor vehicle expenses, business use of home expenses and capital cost allowance, all because they are of personal benefit to Ms. Boily and she has provided no evidence as to what portion may have been attributable exclusively to the daycare, or that she would not have otherwise had to pay for in any event. Additionally, I am prepared to add the “Management and administration fees” of $8000.00 for 2012 back in as the court has absolutely no indication as to what that claim entailed. That is equally true of the “Office expenses” of $2629.76 in 2013, and so they too will be added back in. Telephone and utilities expenses are also of personal benefit to Ms. Boily, however some potion of them, unexplained, may be in relation to the daycare. For example, the utilities may be somewhat higher as a result of running a daycare out of that space, and therefore, only $200 of those types of expenses will be added back in. The court is assuming that the supplies of $10,105 in 2012 and $3706.65 in 2013, as well as the meals and entertainment of $6500 in 2017, relate in part to feeding the children in the daycare. However, again absent any plausible explanation (including with respect to how many kids attend the daycare in a year and/or how many are fed and how often), the court cannot rely on that assumption to be accurate. Ms. Boily’s household would also presumably benefit from some portion of the food purchased. I would therefore allow a deduction of 70% of those expenses.

[41] The end result is that for 2012, Ms. Boily’s income for support purposes will be $8,334 (Line 150 income) + $3045 (30% of supplies/meals) + $8891 (rent) + $8000 (management and administration) + $200 (telephone and utilities) + $3868.20 (motor vehicle) + $3746.55 (CCA) + $4,266 (business use of home), for a total of $40,350.75.

[42] That for 2013 is $10,258 (Line 150 income) + $2629.76 (office) + $1112 (30% of supplies/meals) + $9381 (rent) + $3212 (motor vehicle) +$5731.64 (CCA) + $2591.90 (business use of home), totalling $34,916.30.

[43] Ms. Boily has not produced any documentation for 2014, 2015 or 2016, however, in keeping with the above, I would impute an income to her in those years of $37,600, which is the average of 2012 and 2013. Regardless, Ms. Boily’s lack of production does not affect the outcome, given Mr. Eaton’s income during those years,

[44] Ms. Boily’s income for support purposes in 2017 is $20,000 (estimated Line 150 income) + $1950 (30% supplies/meals) + $26,964 (rent) = $1400 (repairs and maintenance) = $200 (utilities), totalling $50,514. I would apply the same formula to 2018, having no other evidence upon which to base a 2018 income determination for her.

Retroactive

[45] I, therefore, find that the parties incomes for spousal support purposes for the years 2012 to 2017 are as follows:

• 2012 – Mr. Eaton = $198,919; Ms. Boily = $40,350.75;
• 2013 – Mr. Eaton = $159,411; Ms. Boily = $34,916.30;
• 2014 – Mr. Eaton = $76,562; Ms. Boily = $37,600;
• 2015- Mr. Eaton = $26,281; Ms. Boily = $37,600;
• 2016 – Mr. Eaton = $30,000; Ms. Boily = $37,600; and,
• 2017 – Mr. Eaton = $30,000; Ms. Boily = $50,514.

[46] DivorceMate calculations for those years using those income and the with child support formula on the support ordered by Justice Sheard, provide that midpoint of after tax cost/benefit lump sum payable by Mr. Eaton would be:

• 2012 Low – $15,238; Mid - $18,817
• 2013 Low - $10,183; Mid – $13,804

[47] The same calculations reveal that spousal support payable for 2014, 2015, 2016 and 2017 is zero. Because the court has found that Ms. Boily’s entitlement to support is compensatory, it shall be ordered at the mid-range. Mr. Eaton shall, therefore, owe Ms. Boily a lump sum payment of $32,621 for the period of January 1, 2012 to December 31, 2017.

On-going Spousal Support

[48] Mr. Eaton has provided an estimation of his net 2018 income at $104,677 [20]. While Ms. Boily has attempted to suggest that Mr. Eaton’s OHIP and other billings are indicative of his income, she has not accounted for all of the expenses taken therefrom, which include drawings (and it is unknown what, if anything, beyond salary is paid from drawings), insurance, OMA and other professional fees and research contributions. Absent better explained or more convincing evidence, I am prepared to make an order for on-going spousal support commencing January 1, 2018, on an estimated annual income of $104,677 for Mr. Eaton and an imputed income of $50,514 for Ms. Boily.

Child Support Adjustment

[49] In addition to an order of retroactive and on-going spousal support, Ms. Boily seeks to readjust child support for 2017 and 2018 based on potential changes to Mr. Eaton’s income. Mr. Eaton argues, however, that this court does not have jurisdiction to deal with that issue, as Justice Sheard’s order of March 16, 2017 is a final order in this regard. He submits that the proper route to addressing that issue, in the event that the parties cannot agree as to the appropriate adjustment, would be by way of a Motion to Change the order of Justice Sheard. While I agree that this is technically correct, having the information required to make the adjustment, I see little point in requiring the parties to commence yet another proceeding. Additionally, spousal support cannot properly be calculated for 2018 without taking into account the appropriate amount of child support payable. Having regard to the primary objectives of the Family Law Rules [21], and relying on Rule 2(3) regarding dealing with cases justly and saving expense and time, I am prepared to make the necessary adjustments.

[50] Having said that, however, I do not believe that it would be fair to the parties to deal only the adjustment that Ms. Boily wants. As I have indicated above, Mr. Eaton’s income for 2015 was reassessed by Revenue Canada to be $26,281. Thus, child support payable for three children on that amount pursuant to the 2011 Guidelines was $532 per month, and that is the sum Mr. Eaton ought to pay for 2015.

[51] Mr. Eaton’s evidence was that he was not employed for remuneration between April of 2015 and January of 2018. No evidence to suggest otherwise was provided to the court. Based on the information before me, there would thus be no change to child support for 2017.

[52] Commencing January 1, 2018, Mr. Eaton will pay to Ms. Boily the table amount for three children of $1992 per month.

[53] A DivorceMate calculation on Mr. Eaton’s income of $104,677 and Ms. Boily’s income of $50,514 on a with child support formula at $1992 per month reveals that zero spousal support is payable in 2018.

Order

[54] For the reasons given above, my order is as follows:

1. The Respondent shall pay to the Applicant a lump sum payment of spousal support of $18,817 for the year 2012, based on the Respondent’s income of $198,919 and the Applicant’s income of $40,350.75;
2. The Respondent shall pay to the Applicant a lump sum payment of spousal support of $13,804 for the year 2013, based on the Respondent’s income of $159,411 and the Applicant’s income of $34,916.30;
3. Spousal support payable by the Respondent in 2014 is zero based on the Respondent’s income of $76,562 and the Applicant’s income of $37,600;
4. Spousal support payable by the Respondent in 2015 is zero based on the Respondent’s income of $26,281 and the Applicant’s income of $37,600;
5. Spousal support payable by the Respondent in 2016 is zero based on the Respondent’s income of $30,000 and the Applicant’s income of $37,600;
6. Spousal support payable by the Respondent in 2017 is zero based on the Respondent’s income of $30,000 and the Applicant’s income of $50,514;
7. Paragraph 1(iv) of the Order of Justice Sheard dated March 16, 2017 is varied to read as follows: “Effective January 1, 2015, the Father shall pay child support for the three children fixed in the amount of $532.00 per month, based on the Father’s 2015 income of $26,281”;
8. Commencing January 1, 2018, the Respondent shall pay to the Applicant $1992 per month in support of the children of the marriage, Sarah Nathalie Eaton born September 22, 2001, Emilie Rachel Eaton born June 6, 2004, and Olivia Nicole Eaton born October 6, 2006, being the FCSG Table amount for three children on an annual income of $104,677;
9. Commencing January 1, 2018, the Respondent shall pay to the Applicant $0.00 per month in spousal support based on the Respondent’s income of $104,677 and the Applicant’s income of $50,514;
10. The Family Responsibility Office shall continue to enforce support, and shall make all necessary adjustments in accordance with this order.

General Comments

[55] There appears to be two general themes permeating this litigation, which has essentially been going on since 2009. The first is that Ms. Boily seems to be of the view that Mr. Eaton has more money than he actually has (or has had at periods), although she has presented no evidence to convince the court of that. Both Justice Sheard’s order and this court’s decision have rested on information that was readily available (and agreed to by Mr. Eaton), namely Notices of Assessment or Reassessment by CRA. Certainly the issue of child support, but possibly even that of spousal support, could have been resolved without the necessity of litigation.

[56] The second theme is that Mr. Eaton has struggled with meeting his obligations, at times, to disclose information and make the necessary adjustments. Ms. Boily has for years alleged that Mr. Eaton has failed to disclose pertinent information to her and to the court (to the point of bringing four motions for contempt findings, none of which were successful), and that he has also mislead the court with respect to his income. With this, I do not agree. From my reading of the Continuing Record, Mr. Eaton has provided/filed all of the information required, most of it by April 10, 2015 [22], to answer the questions that needed answering. As I indicated above, at the end of the day, the relevant evidence for both parties was their Line 150 incomes, and in the case of Ms. Boily, what her business expenses were. What Mr. Eaton has consistently failed to do is comply with the provision in paragraph 5 of Justice Polowin’s order requiring him to “provide his personal and corporate tax returns and Notices of assessment to the applicant by June 1st each year, thus allowing 30 days for the retroactive calculation to be made”. It is my sense that Mr. Eaton struggles with even getting his taxes completed, due in part, no doubt, to the medical problems he has faced since 2009. Unfortunately, Ms. Boily appears to construe what I see in a large measure as his incapacity as an effort on Mr. Eaton’s part to avoid his obligations. Having said that, it would behoove Mr. Eaton to provide his Income Tax Return and Notice of Assessment/Reassessment to Ms. Boily in a timely manner so the necessary adjustments can be made without resource to court.

[57] Ms. Boily has also repeatedly alleged that she has received next to no support (historically), which, when one reviews the credits attributed to Mr. Eaton in the child support calculations of the Family Responsibility Office, is simply not true. That he has not paid what he perhaps ought to have been paying at different junctures is a different issue than whether he was paying at all, and the two should not be conflated.

[58] Essentially, the litigation in this case has got to stop; it is not ultimately beneficial nor affordable to either party. It is my hope that, between Justice Sheard’s order and this order ultimately resolving the issues from 2012 to present, and the anticipated order on the trial of the issue finalizing matters from September of 2009 to December of 2011, the parties will take a hiatus from litigation.

Costs

[59] If the parties are unable to resolve the issue of liability for costs of the Motion to Change after 15 days, after having exchanged copies of their bills of costs and all offers to settle, the parties may schedule an appearance before me through Trial Coordination to make brief submissions, and the court will make an order.

Engelking J.

Released: November 26, 2018

COURT FILE NO.: FC-09-2433-5 DATE: 20181126 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Francine Michelle Marie Boily, Applicant AND Christopher John Eaton, Respondent REASONS FOR JUDGMENT Justice T. Engelking

Released: November 26, 2018

[1] Eaton affidavit sworn on June 17, 2018, paragraph 2, CR Volume 5, Tab 1

[2] Eaton affidavit sworn June 17, 2018, paragraph 12, CR Volume 5, Tab 1

[3] CR Volume 5, Tab 2

[4] R.S.C. 1985, c.3 (2nd Supp.), as am.)

[5] Boily affidavit sworn January 4, 2017, paragraph 24, CR Volume 3, Tab 2

[6] , Eaton affidavit sworn June 17, 2018, paragraphs 19 to 23 and Exhibit “C”, questions 389-392, CR Volume 5, Tab 1

[7] Eaton affidavit sworn June 17, 2018, paragraph 31 and Exhibit “F”, CR Volume 5, Tab 1

[8], 2002 CarswellOnt 3228 (Ont. C.A.), additional reasons, 2003 CarswellOnt 17 (Ont. C.A.)

[9] Volume 2, Tab 1, with Boily Financial Statement sworn May 15, 2015

[10] Eaton affidavit sworn on June 17, 2018, CR Volume 5, Tab 1, exhibit “H”

[11] Federal Child Support Guidelines (SOR/97-175, as am.), section 19(1)(g).

[12] 2012 ONSC 5984, 2012 CarswellOnt 13860

[13] 2012 ONSC 1548, 2012 CarswellOnt 3501

[14] Lemmon v. Lemmon, 2004 CarswellOnt 771 (Ont. S.C.J.), additional reasons at 2004 CarswellOnt 1541 (Ont. S.C.J.)

[15] R. (P.C.J.) v. R. (D.C.), 2003 CarswellBC 788 (B.C. C.A.)

[16] Manchester v. Zajac, 2011 CarswellOnt 13546 (Ont. S.C.J.)

[17] Cook v. Cook, 2011 CarswellOnt 10276 (Ont. S.C.J.)

[18] Osmar v. Osmar, 2000CarswellOnt 1928 (Ont. S.C.J.)

[19] Wilson v. Wilson, 2011 ONCJ 103, 2011 CarswellOnt 1630 (Ont. C.J.)

[20] Eaton Financial Statement sworn June 17, 2018, CR Volume 5, Tab 2

[21] (O. Reg. 114/99, as am.)

[22] This included Associates in Psychiatry Cumulative Statistic reports for year-end 2012, and every month in 2013, 2014, and the first two months of 2015; six letters from his treating physicians; his bankruptcy documents; his Notices of Assessment for 2011, 2012 and 2013; and his ITR’s for 2009, 2010, 2011, 2012 and 2013