SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: Ottawa File FC-07-1023-3
DATE HEARD: December 21, 2011

RE: Saikaley and Malette-Saikaley

BETWEEN: Richard Saikaley, Applicant and Diane Malette-Saikaley Respondent

BEFORE: Honourable Mr Justice Martin James

COUNSEL: Self-Represented Applicant and Respondent

ENDORSEMENT

[ 1 ] The respondent has brought a motion for several temporary orders that are set out at Tab 11 of the Continuing Record. The respondent seeks the following:

a. Payment of arrears of spousal support in the amount of $5,400;

b. Disclosure of the applicant’s “business financials” for the last 3 years;

c. Payment of arrears of extraordinary expenses in the amount of $1500;

d. Return of the children’s passports to her;

e. Costs including loss of work, time, stress, an interest incurred as a result of her bills not getting paid on time.

Spousal Support

[ 2 ] Spousal support is payable to the respondent pursuant to the order of Linhares de Sousa J. dated December 9, 2008 when the applicant agreed to pay spousal support of $600 per month to the respondent until December 31, 2013. At the time of the consent order made by Linhares de Sousa J., the children resided with the respondent. The applicant also agreed to pay child support.

[ 3 ] At some point prior to February, 2011, the children began to reside with the applicant. In recognition of this fact, the respondent agreed at a case conference before Master MacLeod on February 3, 2011 to a temporary order terminating the child support payable by the applicant. The suspension of payment of child support was carried into effect in an order made by McMunagle, J. dated February 3, 2011. Paragraph 1 of that order provides as follows:

1. The support payments ordered by Justice de Sousa on January 28, 2009 (sic) are terminated temporarily. The payments shall be terminated as of November 1, 2011 along with the requirement to pay for special expenses.

[ 4 ] As a result of inadvertence, the order did not specify that only the child support and not the spousal support was to be discontinued temporarily.

[ 5 ] While the provision quoted above does not differentiate between child support and spousal support, a review of the record makes it clear that only child support was to be affected. However, the applicant used this inadvertent slip as an opportunity to cease paying both child support and spousal support. The payment of spousal support should never have stopped. When I queried the applicant about this at the hearing of the motion, he was not prepared to acknowledge that only the child support payments ought to have been suspended despite the fact that it is obvious that only the child support was under discussion at the time.

[ 6 ] Unfortunately, in requesting the payment of spousal support arrears of $5400, the respondent does not state the months when spousal support was not paid or clarify the basis of the calculation of arrears at $5400. There is evidence attached to the affidavit of the applicant at Tab 14 of the Continuing Record that the Family Responsibility Office was paid an amount on account of spousal support in both January and February, 2011. The best information available to me indicates that arrears of spousal support have accumulated since March 2011 such that there are now arrears of $6600 to and including January, 2012. An order will issue requiring the applicant to pay $6600 forthwith and to continue with a payment of monthly spousal support in February, 2012 to and including December, 2013.

[ 7 ] If more is due to the respondent for arrears than I have allowed, she may re-visit the issue at the hearing of the main motion made by the applicant to change the order of Linares de Sousa J. If my order results in an overpayment of spousal support by the applicant, the overpayment shall not be reversible as the payment of spousal support should never have been discontinued. Any confusion originated with the applicant’s decision to stop paying spousal support.

Disclosure of Financial Information

[ 8 ] The respondent requests an order requiring the applicant to disclosure financial information for the last 3 years. This matter was addressed at a case conference held on August 11, 2011 with Belch J. At that time he ordered that both parties were to provide financial disclosure within 30 days to include proof of income and the past three years of personal income tax returns and notices of assessment. In the applicant’s case, this is to include his business statements and tax returns.

[ 9 ] The applicant has included some financial disclosure attached to his Form 13 financial statement sworn November 7, 2011. The applicant is the controlling force in relation to a company called to DRMD Consulting Inc. (the “Corporation”). It appears that the respondent seeks to delve more deeply into the applicant’s financial affairs than is disclosed with tax returns and T4’s. The respondent alleges that the applicant has used his corporation as a means of concealing his actual income. The applicant has attached copies of the tax filings for the Corporation for 2008, 2009 and 2010. There is no indication in this document that the applicant has provided the financial statements for this corporation for the relevant years and an order will issue for copies of the financial statements for the Corporation for 2008, 2009 and 2010 to be provided to the respondent.

[ 10 ] In addition, the applicant shall provide a statement showing full details of all salaries, wages, management fees, dividends bonuses or benefits paid by the corporation to any person or entity that is not at arm’s length to the corporation or who is related to the corporation within the meaning of the Income Tax Act for 2009, 2010 and 2011. For greater clarity, benefits include, but are not limited to, cell phone expense, meals, car payments or expenses, travel expenses, entertainment and business promotion expenses and any personal expenses. This information shall be provided within 60 days. If this proceeding is not resolved or completed by June 1, 2012, the same information shall be provided for the 2011 fiscal year by July 6, 2012.

Payment of Extraordinary Expenses

[ 11 ] The respondent seeks re-imbursement of extraordinary expenses related to “hockey expenses, special expenses, prescriptions… of approximately $1500.” The details of her claim are not provided. I am unable to discern the date, purpose, nature of the expense for which she is making a claim nor the amount paid or payable by each parent. I am unable to make any disposition regarding the extraordinary expenses claimed by the respondent due to a lack of information. This portion of the respondent’s motion is dismissed without prejudice to renewing this request on better evidence at the hearing of the applicant’s motion to change. The applicant provided details of his claim for re-imbursement of extraordinary expenses (see Exhibit D, Affidavit of Richard Saikaley, Tab 13) but there is no motion by the applicant before me to deal with this item at this time.

Return of Passports of the Children

[ 12 ] The respondent says that pursuant to an order at the August 11, 2011 case conference, the applicant was required to return the children’s passports to her through the courts. The actual endorsement provides as follows: “Children’s passports to be provided by mother to father to accommodate a vacation to the United States and on or before September 5 th , 2011 the passports are to be filed with the court.”

[ 13 ] I am unable to determine from the above endorsement the timing of the proposed vacation. It is unclear to me whether the passports were to be filed with the court for the purpose of transferring them to the applicant or to be filed with the court after the applicant had travelled with the children so that they would then be in the custody of the court.

[ 14 ] There is nothing in the endorsement that says the passports are to be returned to the respondent. This aspect of the respondent’s motion is dismissed.

Other Matters

[ 15 ] In his affidavit in answer to the respondent’s motion, the applicant appears to make a request for “a temporary order for full sole custody” and other relief (see Tab 13 C.R.). There is, however, no motion filed by the applicant that permits me to consider any temporary orders in favour of the applicant at this time.

[ 16 ] The tenor of the emails exchanged by the parties is, in many instances, inappropriate and hostile. The parties are ordered to refrain from exchanging emails that contain denigrating, hostile or disrespectful comments or content.

[ 17 ] The respondent also seeks costs and other compensation. The respondent is unrepresented and has not incurred legal expenses in relation to this motion. She has not provided any information regarding uncompensated lost time from work nor any particulars in support of her interest claim. Compensation for “stress” is in the nature of damages and may not be awarded on a motion of this nature.

[ 18 ] It is not appropriate to order payment of any amount on account of these claims on this motion. No order as to costs.

James, J.

DATE: January 27, 2012

COURT FILE NO.: Ottawa File FC-07-1023-3
DATE HEARD:
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Saikaley and Malette-Saikaley BETWEEN: Richard Saikaley, Applicant and Diane Malette-Saikaley, Respondent BEFORE: Honourable Mr Justice Martin James COUNSEL: Self-Represented Applicant and Respondent ENDORSEMENT James, J.

DATE: January 27, 2012