Tourout v. Tourout, 2022 ONSC 6529

COURT FILE NO.: FS-22-0024-00

DATE: 2022-11-21

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: KRISTY PAULA TOUROUT v. AXTON MICHAEL TOUROUT

HEARD: November 17, 2022

BEFORE: Nieckarz J.

COUNSEL: S. Ettinger, for the Applicant

Self-rep, for the Respondent

Endorsement

[1] This is the Applicant’s motion for an order for the following:

a. Sole decision-making authority with respect to the children, A.J.T., born August 31, 2010, and E.T., born April 17, 2012.

b. Confirming that the primary residence of the children shall be with the Applicant (“Mother”).

c. Child support for the children retroactive to June 1, 2022, in the amount of $1,190, based on the Respondent’s (“Father”) 2021 gross annual income of $78,610 and the Federal Child Support Guidelines.

d. Various disclosure pertaining to income, and declarations pertaining to the valuation date of the parties for the purpose of pension valuations.

[2] There is no dispute that the Mother has been the primary caregiver for the children since separation.

[3] The Father appeared but did not file materials. On the record, the Father confirmed that while he has historically always worked, he struggled in 2022 to find stable employment. He indicated that his income is less than $17,000 in 2022 to date. He has, now, found stable employment in the mining industry in British Columbia. He is just starting this job, which pays a salary of $105,000 annually. I accept the Father’s representation as to his inability to find work in 2022.

[4] The Father’s schedule for work has not yet been set. He is hopeful that he can negotiate a 14-days on/14-days off schedule with his employer to allow him to share parenting of the children.

[5] Based on the evidence before me and the submissions made, I see no reason to determine the parenting issues. There do not appear to be any urgent or ongoing issues that necessitate a decision-making order at this time. There is little evidence as to the ability or inability of the parties to make decisions jointly. The Father acknowledges that the children live with the Mother full-time, and although he has expressed a desire to share time with them if his work schedule allows, there is no indication that he will unilaterally disrupt the status quo. From what information I have, both parties impress me as reasonable and child-focused but they have had uncertainty injected into their lives by virtue of the separation and the Father’s uncertain work arrangements. I have insufficient evidence before me to make any determinations as to what is in the best interests of the children.

[6] It is, however, appropriate that an order be made for temporary child support. The Father has indicated verbally that his new employment is stable and expected to be permanent. His income is salary based. The Mother is caring for the children full-time, and child support should be paid on an on-going basis unless the parenting arrangements are subsequently changed by either mutual agreement or court order. Child support should be paid based on the Father’s current income of $105,000 annually as opposed to his 2021 income.

[7] With respect to retroactivity, given the Father’s representations as to his income in 2022, I am not inclined to make an order for support commencing June 2022 based on his 2021 income. This is without prejudice to either party’s rights at trial, once further information is received, to argue that there was an underpayment or overpayment in 2022.

[8] With respect to disclosure, there is already a consent order dated October 27, 2022, that requires income disclosure to be made by November 10, 2022. There is an expectation that orders of the court will be followed. If there is any income information required by that order that has not already been provided, the Father should immediately ensure compliance. It is appropriate to make a new order pertaining to the particulars of the Father’s current employment. I note that the draft order provided does not deal with the valuation date for pension valuation purposes, and therefore I have made no order in this regard.

[9] In light of the foregoing, it is ordered that:

Pursuant to the Divorce Act: (if this is not a Divorce Application the Applicant may change this to the Family Law Act in the drafting of the order)

a. Commencing December 1, 2022, and on the first day of each month thereafter the Respondent, A.M.T. shall pay child support to the Applicant, K.P.T., in the amount of $1,533 per month for the children A.J.T, born August 31, 2010, and E.T., born April 17, 2012, based on an estimated income of $105,000 and the Federal Child Support Guidelines.

b. This order is based on the existing parenting arrangements, with the children being in the primary care of the Mother. If the parties are unable to agree as to the parenting arrangements for the children on an ongoing basis, this order is made without prejudice to their rights to bring a further motion dealing with decision-making authority and parenting time for the children.

c. This order is also without prejudice to the right of the parties to argue that a different amount of child support is appropriate for the period covered by this order, and with respect to any retroactive overpayment or underpayments of child support.

d. The Father shall provide to the Mother, pursuant to s. 21 of the Guidelines, verification of his current income in the form of a copy of any letter or email correspondence received from his employer confirming the terms of his employment including pay and benefits, a copy of his employment contract (if there is one), and a copy of his first three paystubs.

e. Each party shall provide to the other copies of all T3’s, T4’s and T5’s received for the taxation year 2022, along with a copy of their income tax return once filed and Notice of Assessment, once received.

Pursuant to the Family Responsibility and Support Arrears Enforcement Act:

f. A support deduction order shall issue.

g. Unless the Support Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the director and the amounts owing under the Support Order shall be paid to the director, who shall pay them to the person to whom they are owed.

Pursuant to the Courts of Justice Act:

h. The Respondent shall pay costs to the Applicant for this motion in the amount of $650. The said costs are on account of child support and enforceable as such.

i. This Order bears post-judgment interest at the rate of four (4.0%) per cent per annum effective the date of the Order.

[10] With respect to costs, the Applicant’s Bill of Costs on a full recovery basis is $1367, and on partial recovery basis is $825.13 inclusive of fees, disbursements and HST. This is more than reasonable. The Applicant incurred costs to obtain a child support order and she should be compensated for those costs by the Respondent. The Respondent was reasonable in his position during the motion and honest about his income and circumstances, but this is an issue that could have been resolved out of court. While costs should be paid by the Respondent, there is no reason to award costs higher than partial recovery. Not all the relief sought was awarded, which warrants some reduction in costs. In my view, $650 is a fair and reasonable amount to be paid in the circumstances of this case.

[11] As the Father is representing himself, he is advised to consider the following resources in preparation for any upcoming steps in the proceeding:

Notice to the Profession dated October 25, 2022, NOTICE TO THE PROFESSION RE: CIVIL and FAMILY PROCEEDINGS IN THE NORTHWEST REGION | Superior Court of Justice (ontariocourts.ca)

CJC Guide for family law proceedings, https://cjc-ccm.ca

• Steps to Justice Community Legal Education Ontario

https://stepstojustice.ca/legal topic/family-law

• Family Law Information Program Legal Aid Ontario

http://www.legalaid.on.ca/en/getting/flip.asp

• Family law legislation, rules and forms

www.ontariocourts.ca/scj/family/legislation forms/

• Guide to Process Superior Court of Justice

www.ontariocourts.ca/scj/news/publications/guide family/

• Family Court forms, Ministry of the Attorney General

http://ontariocourtforms.on.ca/en/

• Assistance Completing Your Court Forms Community Legal Education Ontario