Court File and Parties

COURT FILE NO.: FC-09-2433-9 DATE: 2018/11/26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Francine Michelle Marie Boily, Applicant – and – Christopher John Eaton, Respondent

Counsel: Aaron MacKenzie, Counsel for the Applicant Deanna Paolucci, Counsel for the Respondent

HEARD: September 18, 2018

Reasons for Judgment

Justice Engelking

[1] This matter was before me on April 26, 2018. The Respondent, Mr. Eaton, had brought a Motion to Change a Final Order granted by Justice Polowin in 2012. However, over the course of the April 26, 2018 appearance, it became clear that what was actually required was a discrete trial of an issue, the issue being what child and spousal support was payable by Mr. Eaton between the parties’ date of separation of September 24, 2009 and December 31, 2011.

[2] The Applicant, Ms. Boily, brought her original application in 2009. On February 24, 2010, Justice Mackinnon granted an order providing that commencing on that date Mr. Eaton was to pay child support of $4071 per month and spousal support of $5015 per month on an annual income of $250,000. The support was to be enforced by the Family Responsibility Office.

[3] On January 11, 2011, Justice McNamara granted an order suspending the child and spousal support provisions of the Order of Justice Mackinnon dated February 24, 2010, and suspended as well the enforcement of arrears pending further order of the court. Justice McNamara also ordered that commencing September 1, 2010, Mr. Eaton was to pay $425 per month for support of the children based on a gross annual income of $30,000.

[4] On February 13, 2012, the parties appeared before Justice Polowin at a pre-trial Settlement Conference. On that date, Ms. Boily’s application was settled on a final basis. Justice Polowin’s final order provided as follows with respect to the issues of support:

#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 assess 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 1 st 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 1 st 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 ears more than set out in paragraph 5 above.

#7. Spousal and child support arrears that have accumulated to and including January 31st 2012 are rescinded. The Accountant of this Court is ordered to release and make payable to the Applicant the full amount held to the credit of this action, estimated to be approximately $103,000.00 as of this date, for lump sum child support intended to provide for the children and their education and well-being. No part of this amount shall be deemed payable for spousal support or property division; it is ordered paid to the Applicant for the sole and narrow purpose of child support. Should the Respondent’s income be re-assessed by CCRA at any time for 2009 and onwards, the issue of arrears (above rescinded) may be resurrected. From the $103,000.00 set out above, an amount of approximately $4000.00 shall be paid to the City of Ottawa for re-imbursement of benefits.

[5] On April 11, 2013, however, Justice Ray granted an order in the absence of Mr. Eaton and on consent of Ms. Boily, Mr. Eaton’s Trustee in Bankruptcy and the Bank of Montreal, which provided as follows:

#1.) This court orders that paragraph 7 of the order of Polowin J., dated February 13, 2012, in the within matter, and [sic] is hereby rescinded save and except for the last sentence in the said paragraph.

[6] The effect of Justice Ray’s order was to render the recession of arrears ordered by Justice Polowin null and void. This meant that, although there was a final order on child and spousal support on a go forward basis (as of February 1, 2012), there was no final order as to what was the proper amount of support payable retroactively from the date of separation (or the date of Justice Mackinnon’s order) to the end of 2011. Prior to the temporary order of Justice McNamara dated January 11, 2011, arrears had accumulated on the temporary order of Justice Mackinnon dated February 24, 2010. Additional arrears had accumulated on the order of Justice McNamara from September 1, 2010 to January 31, 2012 (or until the date of Justice Polowin’s order). As a result of Justice Ray’s order, on July 1, 2013, the Family Responsibility Office added two entries to their calculation of money owed by Mr. Eaton, one for $33,179.99 and another for $20,327.90.

[7] The issue of child support payable from January of 2012 has since been dealt with by Final Order of Justice Sheard dated March 16, 2017 on the Respondent’s Motion to Change. The issue of spousal support payable from January of 2012 has been dealt with by the Order of this court dated November 26, 2018. However, the issue of what ought to have been the final order on child and spousal support payable prior to December 31, 2011 has never been dealt with, given that paragraph 7 of Justice Polowin’s order of February 13, 2012 ceased to exist as of April 11, 2013.

[8] This, therefore, is the judgment in relation to that discrete issue. Although dated, it is important to the parties to determine what was the proper child and spousal support payable during this period. It is also important to the Family Responsibility Office (FRO) so that the proper amount of support payable can be enforced. Otherwise, FRO is left to collect support on temporary orders which may not properly reflect what was in fact payable.

[9] For the reasons that follow, I find that no support was payable by Mr. Eaton in 2009. Commencing January 1, 2010, Mr. Eaton ought to have been paying $1268 per month in child support, being the 2011 Federal Child Support Guidelines Table amount for three children on his annual income of $65,000. No spousal support was payable in 2010 based on a with child support calculation on Mr. Eaton’s annual income of $65,000 and Ms. Boily’s annual income of $18,528. In 2011, Mr. Eaton ought to have been paying $624 per month in child support based on the FCSG table amount for three children on an annual income of $31,708. No spousal support was payable in 2011.

Background Facts

[10] Ms. Boily and Mr. Eaton began cohabiting in 1999. Three children were born of their relationship, Sarah Nathalie Eaton, born September 22, 2001, Emilie Rachel Eaton, born June 6, 2004 and Olivia Nicole Eaton, born October 6, 2006. The parties married on August 9, 2008 and separated on September 24, 2009.

[11] Ms. Boily signed her within application on October 1, 2009. As is noted above, on February 24, 2010, Justice Mackinnon granted the first temporary order in the matter.

[12] Mr. Eaton is a medical doctor working at the Royal Ottawa Hospital. Prior to 2009, he made in excess of $250,000 annually. He also engaged in income splitting with Ms. Boily, who would be paid through a salary and dividends by his corporation. In the months leading up to the separation, Mr. Eaton was suffering from several ailments, which included gastrointestinal issues, stress, seizures and substance abuse.

[13] Immediately before separation, the Respondent’s father, John Eaton, visited the family and did a thorough review of their finances. Mr. J. Eaton testified in this matter and related to the court that the parties were carrying debt of over one million dollars at that time, and that there was no way possible that he could see as to how that debt could be paid on what his son was bringing in. Mr. J. Eaton sat down with both parties and advised them that bankruptcy was likely the only solution to their situation.

[14] The parties then separated. Mr. Eaton and his father stayed in the RV owned by the couple for about one month, and then they found an apartment which Mr. Eaton rented thereafter for $1200 per month. John Eaton is from Winnipeg, and at that time he was staying with Mr. Eaton and attempting to assist him in putting his affairs in order. Mr. J. Eaton traveled back and forth from Winnipeg to assist until such time as he and his wife moved into their own apartment in Ottawa in the summer of 2010.

[15] Christopher Eaton attempted to keep up with the bills, but there were far too many for him to be able to do so. He continued to pay the mortgage on the matrimonial home, as well as utilities such as hydro and gas. He paid $23,000 for a training course the Applicant decided to take, and he gave money by certified check to the Applicant. John Eaton testified that he assisted Mr. Eaton in paying bills from October of 2009 until the summer of 2010 because his son did not have the cash flow to meet them.

[16] Christopher and John Eaton identified and started to meet with a Trustee in Bankruptcy in about October 2009. Mr. Eaton went bankrupt on March 16, 2010. As a result of his bankruptcy, the corporation through which he had previously paid his own salary and also paid Ms. Boily ceased to exist.

[17] Mr. Eaton testified that his illnesses were getting progressively worse in 2009. By 2010, he was working off and on, and when he was working, was doing so for less hours per day than previously. By June of 2010, he was off work completely and by August of 2010, he was hospitalized. Mr. Eaton applied and was approved for disability benefits through his insurer, but the waiting period between application and commencement of the benefits was three months. Mr. Eaton, thus, began to receive disability benefits in September of 2010.

[18] At the time of the temporary order in February of 2010, Justice Mackinnon based the child and spousal support payable by Mr. Eaton on an annual income of $250,000. His actual Line 150 income from his T1 for 2009 was $144,000.

[19] Mr. Eaton’s Line 150 income from his Notice of Assessment for 2010 was $65,000. However, as was indicated above, by September of 2010, he was on disability. Mr. Eaton remained on disability in 2011. His Line 150 income from his 2011 Notice of Assessment was $1708. He additionally received $30,000 in disability payments, making his total income that year $31,708. In February of 2011, Justice McNamara stayed the order of Justice Mackinnon and based child support payable by the Respondent on an annual income of $30,000.

Child and Spousal Support payable from October 1 to December 31, 2009

[20] As was indicated above, the parties separated on September 24, 2009. Subsequent to the separation, Mr. Eaton moved first into the family’s RV (ironically the very object that was the subject of the secured loan held by BMO, and which resulted in the order of Justice Ray in 2013), and then later to an apartment in Ottawa. In October of 2009, Mr. Eaton made payments of $1997.91 on the mortgage, $600 to Enbridge and $400 to Hydro Ottawa in relation to the matrimonial home. In December of 2009, he paid $1000.23 to Hydro Ottawa, $384.51 to Rogers and $319.99 to Enbridge, again all in relation to the matrimonial home. Mr. Eaton’s evidence is that he was also either making purchases for Ms. Boily or the household, or providing cash to Ms. Boily, for some of which she provided receipts. The provision of cash which was acknowledged by Ms. Boily with receipts from October to December 2009 equalled $1200. Mr. Eaton testified that he gave much more to Ms. Boily in case or purchases. Mr. Eaton made a list of what he states are the payments he made, and the cash and/or purchases for Ms. Boily’s benefit total $5256.04 in October, $2150 in November and $4000 in December. Mr. Eaton also made a payment of $1339.60 on Ms. Boily’s car loan for each of October, November and December of 2009, and he made a payment $1492 on October 20, 2009 to Everest College for the tuition for Ms. Boily’s program.

[21] Mr. Eaton’s annual income for 2009 as evinced by his Notice of Assessment was $145,176. Child support pursuant to the 2011 FCSG table for three children would have been $2538 per month.

[22] Ms. Boily’s annual income for 2009 as evinced by her Notice of Assessment was $198,340. Clearly, there would have been no entitlement to spousal support in 2009 as Ms. Boily’s income was approximately $50,000 higher that Mr. Eaton’s.

[23] If each party was responsible for one half of the carrying costs of the home (in which I include the mortgage and utilities), Mr. Eaton’s half in October of 2009 was $1498.95. However, Mr. Eaton paid Ms. Boily’s half ($1498.95) and her car payment ($1339.60). Added to this is one third of the cash Ms. Boily does acknowledge receiving ($400), and the tuition payment to Everest College ($1492). Even if one does not include the sums Mr. Eaton said he paid to Ms. Boily which she did not acknowledge with receipts, the result is that Mr. Eaton paid $4730.55 towards the support of Ms. Boily and the children in October of 2009, or more than $2000 above what might have been payable as child support. In this, I have also not included two payments of $391.50 which Mr. Eaton says he made on a Home Trust Loan in October.

[24] While Mr. Eaton did not make payments on the mortgage in November or December of 2009, he did pay $1029.14 towards the mortgage on January 7, 2010. This presumably would have been towards the November payment, as it was outstanding. Thus, in November of 2009, Mr. Eaton paid Ms. Boily’s one half of that mortgage payment ($514.57), as well as her car payment ($1339.60) and one third of the acknowledged cash payments ($400), for a total of $2254.17, or $283.83 under the applicable child support payment.

[25] In December of 2009, Mr. Eaton paid Ms. Boily’s half of the carrying costs of the home ($854.86), as well as her car payment ($1339.60) and one third of the acknowledged cash payments ($400), for a total of $$2594.46, or $56.46 more than the applicable child support payment.

[26] As a result of the above, I find that no support was payable by Mr. Eaton to Ms. Boily for October, November and December of 2009.

Child and Spousal Support Payable from January 1 to December 31, 2010

[27] Mr. Eaton continued to experience difficulty working in 2010. By June of 2010 he had filed his application for disability through his insurer, Great West Life. In February of 2011, Mr. Eaton received confirmation that his application had been approved, and that his disability payment was to commence as of September 2010. From that point forward, Mr. Eaton was in receipt of disability income of $2500 per month. He had, however, been working some, mostly part-time, hours prior to his application. Mr. Eaton’s annual income for 2010, as is evinced by his Notice of Assessment for 2010, was $65,000. Ms. Boily’s annual income as evinced by her Notice of Assessment for 2010 was $18,528. Child support for three children on that annual income was $1268, and commencing January 1, 2010, that is the sum Mr. Eaton ought to have been paying. A DivorceMate calculation for 2010 indicates that on the with child support formula, spousal support in the mid-range of the SAAG’s is zero based on an annual income of $65,000 for Mr. Eaton and an annual income of $18,528 for Ms. Boily.

Child and Spousal Support Payable from January 1 to December 31, 2011

[28] Mr. Eaton continued to be on disability in 2011. His annual income as evinced by his Notice of Assessment for 2011 was $1705, though he was also in receipt of $30,000 in disability payments. Mr. Eaton’s child support payment for 2011 ought to have been $624. Ms. Boily’s income for 2011 as evinced by her Notice of Assessment was $11,512. No spousal support was payable on the with child support formula on these respective incomes.

Conclusion

[29] This matter was ultimately very straight forward and ought not to have required a trial. Ms. Boily’s position was, in fact, quite difficult to comprehend. Mr. Eaton’s medical history is not a mystery. He has at various times throughout this file and the companion file #FC-09-2433-5 provided letters from his treating physicians. He has, moreover, been on disability for lengthy periods over the past nine years. While Ms. Boily has consistently alleged that Mr. Eaton had more income that he admitted to, or that he was misleading the court, she has failed to demonstrate that to be the case. She attempted to suggest that Mr. Eaton’s earnings from OHIP and other sources, all of which were documented in ROH Associates in Psychiatry Cumulative Statistic reports, translated into much higher incomes than Mr. Eaton was reporting. Her attempts were speculative, at best, and did not convince the court that Mr. Eaton’s income was anything other than what was reported to CRA. Ms. Boily, moreover, was not able to point to any evidence that would lead the court to the conclusion that there was hidden money somewhere. Quite the contrary, at the time of separation Mr. Eaton and his father lived in the family RV until the campground at which they were parked closed. Mr. Eaton then rented a modest apartment in Ottawa. He declared bankruptcy on March of 2010, and much of whatever money he was bringing in was later being garnished either by FRO in relation to the temporary orders made in this matter, or by the Trustee in Bankruptcy to pay creditors of the family’s debt, all of which Mr. Eaton appears to have assumed.

[30] As the court has indicated in the reasons for judgment on Ms. Boily’s Motion to Change under file #FC-09-2433-5, at the end of the day the most significant evidence for both parties were the Notices of Assessments/Reassessments from Revenue Canada. The rest was simply an exercise in mathematics. The Notices in this case evince that the child support payable by Mr. Eaton in 2010 is considerably lower than that ordered by Justice Mackinnon on February 24, 2010, and more or less consistent with that ordered by Justice McNamara for 2011. The evidence supports, moreover, that no spousal support was payable during the years in question.

Order

[31] Based on the above reasons, there shall be a final order as follows:

1. No child or spousal support is payable by the Respondent to the Applicant for the period of October 1, 2009 to December 31, 2009;
2. Commencing January 1, 2010, the Respondent shall pay to the Applicant $1268 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 $65,000;
3. No spousal support is payable by the Respondent to the Applicant for the period of January 1, 2010 to December 31, 2010;
4. Commencing January 1, 2011, the Respondent shall pay to the Applicant $624 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 $31,705;
5. No spousal support is payable by the Respondent to the Applicant for the period January 1, 2011 to December 31, 2011;
6. This is a final order and is intended to replace the temporary orders of Justice Mackinnon dated February 24, 2010 and of Justice McNamara dated January 11, 2011. The support shall continue to be enforced by the Family Responsibility Office. FRO shall make all appropriate adjustments to the arrears owed by the Respondent in accordance with this order and the order of November 26, 2018 on Court File No. FC-09-2433-5 accordingly.

Costs

[32] If the parties are unable to resolve the issue of liability for costs of the Trial of An Issue 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