Superior Court of Justice - Ontario
Court File No.: FC-19-FO000266-0002 Date: 2023-02-27
Re: Taylor Alexis Mawhinney, Applicant And: Daniel Ferreira, Respondent
Before: Justice L. Madsen
Counsel: Ayhan Bakar, Counsel for the Applicant Christopher Crisman-Cox, Agent for Kaitlin Jagersky, Counsel for the Respondent
Heard: February 8, 2023
Endorsement
1The Applicant, Ms. Mawhinney, brings a motion seeking financial disclosure from the Respondent, Mr. Ferreira. Specially, she seeks copies of all bank statements on all of his accounts from January 1, 2021 to the present, inclusive of all copies of cancelled cheques.
2Mr. Ferreira also brought a motion seeking certain medical disclosure from Ms. Mawhinney. That motion was adjourned to March 1, 2023, at 10:00 a.m., on consent.
3I have reviewed the following materials in support of the financial disclosure motion:
a. Ms. Mawhinney’s Notice of Motion dated January 27, 2023; b. Ms. Mawhinney’s Affidavit sworn January 27, 2023; c. Mr. Ferreira’s Affidavit sworn February 2, 2023; d. Ms. Mawhinney’s Affidavit sworn February 3, 2023; and e. Confirmations of both parties.
4This motion takes place in the context of Mr. Ferreira’s Motion to Change (“MTC”) the Final Order of February 14, 2020, which Order resolved issues related to parenting and support. Within that MTC, both parties seek to change the support terms.
5The parties exchanged Requests for Information in 2022.
6Ms. Mawhinney says she produced all the documents asked of her, including copies of all bank statements from January 1, 2021 forward, credit card statements and loan applications, Equifax report, Resumé, and tax information.
7In her Request for Information, Ms. Mawhinney sought corresponding disclosure. She says that Mr. Ferreira provided only partial disclosure in response. It is agreed that he did not provide copies of all bank statements nor did he provide copies of cancelled cheques requested by her. His counsel queried the relevance of those documents in this case and stated she never received a satisfactory answer.
8Ms. Mawhinney says she needs the balance of the documentation sought for reasons including the following:
a. Mr. Ferreira produced an employment letter from Davicon Forming, which Ms. Mawhinney says is incomplete. That letter sets out an hourly rate of pay of $43.45, which equates to annual income of approximately $89,440. However, Mr. Ferreira’s reported income in recent years has been less than that, approximately $73,000 in 2021. She says she needs the disclosure to help understand why there is a discrepancy. b. Mr. Ferreira’s income employment letter is signed by Ana Ferreira - his aunt. Ms. Ferreira is the founder and CEO of the company he works for. c. Mr. Ferreira’s employment letter does not show his bonus structure, if any, nor any benefits to which he may have access. d. Ms. Mawhinney says she does not have reliable information about Mr. Ferreira’s income. She says she is unable to confirm to what extent weather conditions or labour strikes might affect his income. e. Ms. Mawhinney says that bank statements could help her ascertain Mr. Ferreira’s “true” income. f. Ms. Mawhinney says the very fact that Mr. Ferreira is resisting this disclosure is “highly questionable.”
9Mr. Ferreira’s affidavit explains that:
a. He is and has always been a T4 employee. He has never been self-employed. He has never earned cash income. b. He does not receive remuneration from his employer other than employment income. He is not an officer, director or shareholder of the company he works for. c. He is part of a Union Local and his employment is subject to a Collective Agreement that has been disclosed to the Applicant. d. He is currently paid $43.45 per hour. He does not receive an “annual salary.” He receives annual increases as per the “Provincial Formwork Collective Agreement.” He does not receive bonuses. Benefit premiums are administered through the union. Vacation pay is included in his paystub. e. As a unionized employee, he is not permitted to work during strikes and would be terminated from the union if he did. f. He cannot always work 40 hours per week as his work can be affected by weather. He can be rained out or snowed out, so to speak. g. As a union member, he is not treated any differently than any other union employee working at his company.
The Law
10The issue in this case is child support. The starting point for financial disclosure in a child support case is set out in s. 21 of the Federal Child Support Guidelines, SOR/97-175. That section provides that where the payor is an employee, documents including the following must be produced: personal income tax returns and notices of assessment for the three most recent tax years; and the most recent statement of earnings. Rule 13 of the Family Law Rules, O. Reg. 114/99 provides that a Form 13 sworn Financial Statement must also be provided.
11It is trite law that the duty to disclose is the most basic obligation in family law, and that the obligation is immediate and ongoing: see Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11; Manchanda v. Tethi, 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 13; Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183; Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 44.
12However, the disclosure sought must be relevant and proportional.
13Disclosure is not to be used as a weapon and is not intended to overreach: see Boyd v. Fields, [2007] W.D.F.L. 2449; Etemadi v. Maali, 2021 BCSC 1003; Saunders v. Saunders, 2015 ONSC 926. Disclosure is to be proportional to the issues in the case.
14Disclosure is also not a tit-for-tat exercise. That is, just because one party was obliged to produce certain disclosure does not mean the other side has the same obligation to produce specific documents. Documents relevant to assess one party’s income or financial circumstances may not be relevant to the income or financial circumstances of the other.
15The fact that an individual is employed in a non-arm’s length company is not, without more, “suspicious.” There must be further indicia that the standard disclosure will not suffice.
16Further, resisting the production of disclosure that is not relevant, proportional or indicated by the evidence is also not, without more, “suspicious” or “highly questionable.”
Application
17I do not find, on the evidence, that the disclosure sought by Ms. Mawhinney is reasonable or proportionate in the circumstances. This is so for reasons including the following:
a. There is no indication that Mr. Ferreira controls his income or that he is in any way favoured as an employee. b. There is no evidence that Mr. Ferreira receives any income from the company that is not accounted for in his employment earnings. There is no evidence that he is a shareholder, director or officer of the company. There is no evidence that the company is assisting him in “hiding” income. c. There is no allegation in the affidavits of Ms. Mawhinney that Mr. Ferreira earns cash income nor any evidence of same. There is no evidence that Mr. Ferreira receives any income not reflected in his income tax returns. d. Mr. Ferreira’s explanation that his tax returns show annual income less than what would equate to 40 hours per week at his current rate of pay is reasonable, given his evidence about how the weather and potential employment strikes affect his income. e. There is no allegation that Mr. Ferreira’s lifestyle exceeds that which he could support with the income shown on his tax returns. f. Mr. Ferreira’s gross income as shown in his sworn financial statements in this proceeding roughly aligns with his evidence of expenses and the non-accumulation of debt on those statements. g. There is no suggestion that Mr. Ferreira earns any sort of undisclosed income from another source. h. In short, the request for copies of bank statements and cancelled cheques appears to be akin to a fishing expedition, rather than a request arising from other evidence that would suggest that the disclosure required by the Child Support Guidelines will not suffice. i. The affidavit implies, in part, that because Ms. Mawhinney produced certain documents, Mr. Ferreira should have to do as well. The fact that Ms. Mawhinney produced her bank statements is not relevant to this analysis. There was an allegation against her that she receives income beyond social assistance from a third party. Here, there is no basis to go beyond the disclosure required by s. 21.
18Having said all of that, I do order that Mr. Ferreira request from his employer and produce to Ms. Mawhinney a further letter from his employer setting out:
a. The total gross amount paid to him in 2020, 2021, and 2022; b. To the extent that he works less than 40 hours per week, why that is the case; c. Whether, beyond his hourly rate, Mr. Ferreira is entitled to any bonuses and if so whether any have been paid while he has been employed by that company; and d. What if any benefits he is entitled to through the employer.
Costs
19If costs are not resolved between the parties, they may argue costs before me on March 1, 2023, when they attend court to address the outstanding motion regarding medical disclosure. I would state, to assist, that subject to any Offers to Settle that may have been exchanged, I regard Mr. Ferreira as the successful party on this motion notwithstanding that I have ordered a specific letter to be produced.
20Counsel must both bring a Bill of Costs if the issue is to be argued.
L. Madsen J.
Date: February 27, 2023
