COURT FILE NO.: FS-22-0230-00
DATE: 2023-08-22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Malinda Bouchard, Applicant
v.
Cameron Bouchard, Respondent
HEARD: August 3, 2023, via Zoom
BEFORE: Fregeau J.
COUNSEL: L. Tocheri for the Applicant
D. Cox for the Respondent
Endorsement on Motion
The Nature of the Motion
[1] The applicant, Malinda Bouchard (the “mother”) brings this motion requesting a temporary order requiring the respondent, Cameron Bouchard (the “father”) to pay her child support for the four children of the marriage in the amount of $2,659 per month, beginning July 1, 2023, based on the father’s estimated income of $120,000 per year.
[2] The mother also requests an order that the father’s child support arrears for the months November 2022 to June 2023 be fixed at $19,572 and be paid to the mother in the amount of $1,000 per month beginning on July 15, 2023 until paid in full.
Background
[3] The mother and father began to reside together in November 2011, were married on August 8, 2016, and separated on a final basis on December 11, 2021. The mother and father are the parents of four children, all of whom reside in the primary care of the mother. The father has supervised parenting time that he exercises on a minimal and irregular basis.
[4] The father did not complete high school. Until approximately 2021, he worked primarily in general labour positions, earning between $40,000 and $50,000 per year. In 2021, the father began to work in the mining industry and his income increased significantly. The father deposes an annual income history as follows:
• 2020 – approximately $52,000;
• 2021 – approximately $120,000;
• 2022 – approximately $181,000.
[5] The mother is not employed and is currently in receipt of Ontario Works payments.
[6] Following separation, from December 2021 and up to October 2022, the father paid the mother $5,500 per month in support pursuant to an informal agreement between them. Since November 2022, the father has paid the mother only $500 in February 2023, $800 in March 2023 and $400 in April 2023.
[7] The father deposes that he was employed by Niigaani Drilling, a contract drilling company operating in Northwestern Ontario. The father further deposes that he was laid off by this employer in November 2022, returned to work for approximately two weeks in late January 2023 and was laid off again by the beginning of February 2023.
[8] According to the father, he has been in receipt of Employment Insurance benefits in the amount of $1,300 bi-weekly since February 2023. In support of this statement, the father has provided a screenshot from his online banking app illustrating a deposit of $1,300 from “Canada EI” on Thursday July 20, 2023.
[9] A Case Conference was held before me on January 27, 2023. At this conference, the father represented that he was currently laid off from his usual employment, was recently in receipt of employment insurance benefits and anticipated returning to work soon.
[10] An order was made at the Case Conference requiring the parties to exchange their 2019 – 2021 tax returns and Notices of Assessment, 2022 T4’s from all sources and their 2022 tax returns and Notices of Assessment when available. The father was further ordered to advise the mother immediately upon his return to work and to provide her with proof of his income upon his return to work.
[11] The only financial disclosure provided by the father to the mother to date, but for the screenshot referred to above, has been his financial statement, sworn January 16, 2023. In this statement, the father deposed that his current employer was Niigaani Drilling, but that he was laid off “seasonally” from this employment. The father further deposed that his estimated 2021 income and estimated current income was $120,000 per year. The father did not attach any tax returns, any other proof of income or any other financial disclosure to his January 16, 2023, financial statement.
[12] The father deposes that he has been “locked out” of his online CRA accounts since approximately January 2022 and that his account had been “flagged for supposed fraudulent activity”, such that he has been and remains unable to access his account and obtain copies of his past tax returns.
[13] The father further deposes that Service Canada and the CRA use the same online authentication process and that he is therefore not able to have full access to his EI account and unable to obtain a full written statement of his EI benefits to date.
[14] The mother deposes that shortly after the January 27, 2023, Case Conference, she saw the father driving “a work truck”, presumably a Niigaani Drilling truck. The mother contacted the father’s employer on January 30, 2023 and asked if the father had returned to work. On January 30, 2023, Arthur Esquaga, the father’s employer, sent the mother a text message which stated, “Yes [Mr. Bouchard] is back to work. He started around the 18th”.
The Position of the Mother
[15] The mother submits that the father misled her and the court at the January 27, 2023, Case Conference when he said he was not currently working. The mother submits that the only financial disclosure provided by the father to date is his January 16, 2023, Financial Statement in which he deposed that he earns $120,000 per year. The mother contends that child support arrears and ongoing child support should be based on the father’s representation of his income in this financial statement and ordered as requested in her Notice of Motion based on an income of $120,000.
The Position of the Father
[16] The father submits that his only income since January 2023 has been EI benefits in the bi-weekly amount of $1,300, as evidenced by the screenshot of his bank statement which illustrates a deposit from “Canada EI” in the amount of $1,300 on July 20, 2023. The father contends that the mother is effectively asking this court to disregard this evidence of his current income and to impute income to him of $120,000 per year.
[17] The father submits that his child support obligation, both arrears from November 2022 and ongoing, should be set at $842 per month based on his current and actual EI income of $1,300 bi-weekly of $33,800 per year.
Discussion
[18] The father is in default of his financial disclosure obligations, the most fundamental obligation of a family law litigant responsible for the support of four children. However, there is some evidence before the court that the father has been unable to obtain income tax records and further and better proof of his current EI income due to circumstances beyond his control. There is also evidence before the court that the father is in receipt of EI benefits in the amount of $1,300 bi-weekly and has been since the January Case Conference.
[19] In my view, it would be inequitable to impose a child support obligation on the father in accordance with the income set out in his January 16, 2023 financial statement when it is obvious that the income disclosed therein was an estimated income. In these circumstances, I see it as more appropriate to order the father to pay child support arrears and temporary periodic child support on a without prejudice basis to the mother’s right to seek a higher level of child support arrears and ongoing child support if and when it is disclosed that the father had a higher level of income than the $1,300 bi-weekly EI income he has represented as his income on this motion.
[20] As a result, on a temporary and without prejudice basis, and based on EI income of $33,800 per year ($1,300 bi-weekly) the father shall pay to the mother child support as follows:
a. Arrears from November 2022 to August 2023 (10 months) fixed at $8,420 ($842 per month), less credit for $1,700 already paid, and payable at the rate of $250 per month beginning August 15, 2023 until paid in full; and
b. Periodic child support for four children in the amount of $842 per month beginning September 1, 2023.
[21] I further order that the father shall forthwith obtain and provide to the mother the following:
a. A letter from Arthur Esquaga, Niigaani Drilling, confirming the weeks in 2023 when the father has been actively employed by that company and his income when so employed; and
b. A letter from Rocky Bay First Nation confirming whether or not the father is or has been employed as a heavy equipment operator for the First Nation and, if so employed, information as to his income from that employment.
[22] The father’s financial disclosure obligations as ordered at the January 2023 Case Conference remain outstanding and the father is to use best efforts to obtain that disclosure on a timely basis.
[23] If the parties cannot agree on the costs of this motion, they shall file written costs submissions, not to exceed three pages exclusive of their respective Bills of Costs. The mother’s costs submissions shall be filed with 14 days of the release of this endorsement; the father’s within 7 days thereafter.
“Original signed by”
The Hon. Mr. Justice J.S. Fregeau
DATE: August 22, 2023
COURT FILE NO.: FS-22-0230-00
DATE: 2023-08-22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Malinda Bouchard, Applicant
v.
Cameron Bouchard, Respondent
HEARD: August 3, 2023, via Zoom
BEFORE: Fregeau J.
COUNSEL: L. Tocheri for the Applicant
D. Cox for the Respondent
ENDORSEMENT ON MOTION
Fregeau J.
DATE: August 22, 2023