SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-09-2508
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HEATHER SMITH Applicant – and – DAVID WAYNE WAGHORN Respondent
Ann C. Scholberg and Sarah Kennedy, for the Applicant
Unrepresented
Cheryl L. Hess, the Children’s Lawyer
HEARD: November 30, December 1 and 2, 2011 and January 11 and 12, 2012
REASONS FOR JUDGMENT
kane j.
[ 1 ] The parties began cohabitating in Ottawa in 1993. They travelled and lived in Florida for part of 1994 and 1995. They returned to and lived together in Ontario in 1995 until their separation on June 7, 2009.
[ 2 ] The parties have two children: Stacey Amanda Smith (D.O.B. November 17, 1995) and Kyle Austin Smith (D.O.B. September 19, 1997). Stacey is disabled and requires a high level of care.
[ 3 ] The Respondent has been the principal income-earner. The Applicant with the agreement of the Respondent has had the principal care of the children.
[ 4 ] The Respondent prior to their separation was employed in a number of different capacities but worked primarily as an accountant and computer technician. He operated three businesses throughout the course of their relationship. The last business, Selection Health, was the most profitable.
[ 5 ] The Respondent has not seen the children since separation and has paid no spousal or child support since the separation beyond $250. He has been in receipt of public benefits under ODSP since separation.
[ 6 ] The Applicant has been in receipt of public benefits since the time of separation and currently receives ODSP.
ORDERS REQUESTED
[ 7 ] The application herein was issued October, 2009. In its amended form, it was issued one week later in October, 2009.
[ 8 ] At the commencement of this trial, the Applicant requested the following relief:
(1) A declaration that John Muir and David Waghorn is one and the same person as to the issue of whether the Applicant and the Respondent are married to one another.
(2) A declaration that the Applicant and the Respondent are married to one another.
(3) Sole custody of the two children.
(4) Any access to the children in favour of the Respondent should be subject to the wishes of the children.
(5) A restraining order against the Respondent
(6) The imputation of annual income of $100,000 to the Respondent since the date of separation.
(7) Spousal support at the high end of the range provided by the Spousal Support Advisory Guidelines in the amount of $1,442/month commencing July, 2009.
(8) Child support based on the requested above imputed income level to the Respondent in the monthly amount of $1,404 plus s. 7 extraordinary expenses commencing in July, 2009.
[ 9 ] The Respondent requested in argument:
(1) A restraining order against the Applicant requiring her to notify him in advance of her intention, including dates, when she intends to be within the municipal boundaries of the City of Thorold in the Province of Ontario so that he may leave that municipality in order to avoid her and being harassed by her.
(2) A declaration that he is not under the laws of the Province of Ontario legally married to the Applicant.
[ 10 ] This trial was adjourned on December 2, 2011 to permit the Respondent additional time to produce the documents previously ordered he produce and to call witnesses, including Mr. Muir (Moir). The Respondent admitted in argument that he erred in not calling one of his physicians as a witness as to an alleged back injury he suffered in the year 2000.
[ 11 ] On December 11, 2011, he presented some documents as to his payment history from ODSP, a few documents as to his income in 2007, 2008 and 2009 but no tax returns or Notices of Assessment. He presented no medical evidence as to his medical condition or limitations, beyond one short letter from Dr. N. Van Rensburg which I will comment upon further.
[ 12 ] The Respondent was self-represented during this trial and introduced limited evidence. I am left to decide this case on the evidence before me.
[ 13 ] The Respondent states his current “wife” is very supportive financially and might even be willing to assist him to pay child support if they are allowed access to the children.
DID DAVID WAGHORN LIVE UNDER THE NAME JOHN S. MUIR?
[ 14 ] The Applicant testified she and the Respondent started dating and moved in together in 1993. She states that they became engaged in 1994 and were to get married in Ottawa in 1995.
[ 15 ] Each party testified that they were acquainted in Ottawa with a male person who is an American citizen from Florida and lived in Ottawa at the time. It is agreed that the parties saw the male individual on a social basis in Ottawa in 1993. The Applicant testified this male acquaintance is one John Muir. The Respondent, without corroboration, argued that the name of this individual is Moir, not Muir.
[ 16 ] It is agreed the parties moved to Florida in 1993 and lived there until 1995 when they returned together and lived in the Niagara and then Ottawa area.
[ 17 ] The Applicant testified that they decided to live in Florida for a while and obtained identification documents from Mr. Muir in order that the Respondent could work while they were in Florida. The Applicant states the documents the Respondent Mr. Muir received and used in Florida include:
(a) His social security card,
(b) An Hawaiian statement of live birth, and
(c) A Florida voter identification card.
[ 18 ] The above documents identify John Sinclair Muir, however none have a photograph.
[ 19 ] The Respondent denies that he identified himself as or used the name John Muir at anytime. He testified that the Applicant was married to John Muir and that Mr. Muir told the parties at one point in the past that he had lost his wallet. This is the Respondent’s speculation as to how the above documents came into the possession of the Applicant. The Applicant denies this.
[ 20 ] The Applicant testified that while living in Florida, the Respondent worked at Volley Air Gear and attended at or worked at the Daytona Beach Kennel Club. She introduced into evidence:
(a) A business card identifying John S. Muir as the General Manger of Volley Air Gear,
(b) Two Daytona Beach Kennel Club identification cards in the name of John S. Muir each bearing a photograph of the Respondent, and
(c) A Florida State driver’s license in the name of John S. Muir with the photograph of the Respondent.
[ 21 ] The Applicant introduced the following documents into evidence to prove the allegation that they were married and that the Respondent continued to identify himself as John Muir in Ontario after leaving Florida, namely:
(a) Five signed letters, each dated January 29, 1995, inquiring as to employment with five different employers in the Niagara Falls and Ottawa areas. One is from John S. Muir. The others are in the name of the Respondent. All five letters state that the author is about to travel to Atlanta GA, to set up a computer system for the 1996 Olympic Games. The letter from John Muir states he recently worked in Florida as GM of Volley Air Gear, that he has relocated to Canada, that he holds dual citizenship and wishes to work in the Ottawa Valley area. Several of the letters from David Waghorn state he has just had the birth of a daughter.
(b) It is agreed that the oldest of the couples’ children, Stacey, was born in the Niagara area. Shorty after birth, the parties agree Stacey suffered from serious medical complications including cardiac arrest, kidney and heart failure, incontinency and is currently mentally and physically challenged. The Applicant introduced a hospital admission page for Stacey dated May 28, 1996 which lists the parents of this child as the Applicant and John S. Muir. The Respondent admits Stacey has had multiple medical complications and spent a considerable period of time in this hospital but states that the Applicant admitted the child herself and provided this information about Mr. Muir being the child’s father.
(c) The Ontario registration of birth of Stacey was not completed until March 2, 2001. The Respondent signed this document as Stacey’s father using the name of Waghorn.
[ 22 ] Each party blames the other for not producing the real John Muir as a witness in this trial. The Respondent on December 2, 2011 indicated he would attempt to arrange for Mr. Muir to come and testify. On the resumption of the trial, the Respondent stated that he could not issue a summons to compel his attendance in the United States where he states this male now lives.
[ 23 ] The Applicant testified that after they moved to Ottawa from the Niagara area, they lived in a rented residence, fell behind in the rent and received a notice to vacate. She produced and entered a Notice to Terminate a lease and correspondence from the landlord’s solicitor in March 2008 addressed to John Moir and Heather Smith as tenants.
[ 24 ] I am satisfied on the above evidence that the Respondent’s testimony on this point is untruthful and find that he represented himself to be John S. Muir while living with the Applicant in Florida and occasionally upon their return to Ontario. The Florida driver’s licence and the Daytona Beach Kennel Club cards in the name of Mr. Muir containing the Respondent’s photograph, support the Applicant’s testimony. The letters seeking employment in both names with the identical notice that the Applicant would shortly be in Atlanta further support this conclusion. The declaration as to this issue shall therefore issue.
WHETHER THE APPLICANT AND RESPONDENT MARRIED ONE ANOTHER IN FLORIDA
[ 25 ] The Applicant testified that the parties’ first child, Stacey, was born on November 17, 1995. She testified that the parties moved back to Canada in 1995, stayed in Ottawa one month and then moved to the Niagara Falls area where they lived together until they moved to Ottawa in the fall of 1997. They remained in Ottawa together until the 2009 separation.
[ 26 ] The Applicant testified that she became pregnant while they lived in Florida and the parties thereupon decided to get married. She states that the parties attended, completed and signed a Florida application to marry on April 25, 1995 from the Clerk of the Circuit Court, Volusia County. The Applicants on that application are listed as the Applicant and John S. Muir. She states she was present as the Respondent signed as John S. Muir.
[ 27 ] The Applicant testified that while signing the application for a marriage licence, they learned that the marriage ceremony could be performed at that moment for an additional fee. She states she and the Respondent looked at one another, decided to proceed with the marriage immediately and did so.
[ 28 ] The marriage license confirms that the Applicant and John S. Muir were married that same day by a Judy P. Booth, Deputy Clerk, in accordance with the laws of the State of Florida. The Applicant states the ceremony was performed at a gazebo area in or near the court house and that only the parties and the celebrating official were present.
[ 29 ] The Applicant testified that she knew at the time of this wedding ceremony that the representation of the Respondent as John Muir to Florida court and marital officials was untrue. She states that the use of this alias for the wedding continued the Respondent’s use of that alias and was intended to avoid any inconsistencies of records which might jeopardize the Respondent’s employability while in Florida.
[ 30 ] The Applicant testified she subsequently bought a wedding band for the Respondent and he responded by purchasing a wedding band for her shortly thereafter. The Applicant introduced two sales receipts dated November 20 and 24, 1996, each in her name, together with a photograph of the Respondent she states was taken in 1998 in which the Respondent is wearing what appears to be a wedding ring.
[ 31 ] The Respondent denies he ever attended a marriage ceremony in the State of Florida and states that he and Applicant never married one another. He testified that he and the Applicant exchanged vows to one another while standing at Stacey’s Ontario hospital bed at one point however no one other than the child was present.
[ 32 ] He acknowledges the Applicant bought him a wedding band but states he only wore it three times due to the presence of the Applicant’s intimidating father. The Respondent admits however that he frequently represented to the public that he and the Applicant were married.
[ 33 ] The Respondent testified that the Applicant married Mr. Muir in order to thereby qualify her to obtain U.S. employment status with the intention that she thereafter would divorce Mr. Muir. This makes no sense if the Respondent had U.S. documentation establishing him as a citizen of that country as I have determined, permitting the Applicant to marry him and thereby qualify her for U.S. employment.
[ 34 ] The Respondent did not testify that he was opposed to marring the Applicant. His evidence was simply that this had never happened. The evidence does not establish that Mr. Muir was present or living in the US when they resided in Florida.
[ 35 ] The Respondent admits that in his 2006 and 2007 income tax returns, he indicated he was married. An unsigned 2008 tax return indicates he is living common law but lists his then address as Thorold, Ontario, where he only moved to after the 2009 separation of the parties and with his current “wife”, Charlene Waghorn. That 2008 unsigned return does not therefore appear to refer to the Applicant.
[ 36 ] The papers produced by the Respondent on the resumption of this trial from his ODSP file record the Respondent representing that the Applicant is his wife. The Applicant also signed as consenting spouse on the mortgage to this couple’s matrimonial home.
[ 37 ] My rejection of the Respondent’s evidence on the first above issue, weakens his credibility on this second issue. In addition, the Respondent has repeatedly, over a lengthy period of time, represented to numerous agencies and people that he and the Applicant are married to one another. All of this supports the Applicant’s testimony that she and the Respondent received a Florida marriage licence and married to one another under the laws of that State on April 25, 1995. I therefore accept the Applicant’s testimony on this point, notwithstanding that she lied about the true identity of the Respondent to Florida State for her won and their personal gain.
[ 38 ] A declaration that these parties married one another in and under the laws of Florida in 1995 is therefore granted.
ARE THE PARTIES MARRIED UNDER THE LAWS OF ONTARIO?
[ 39 ] Where parties intend to marry one another, then undergo a marriage ceremony before a duly authorized officer in another jurisdiction, but misrepresent the name of one of them to officials of that other jurisdiction, are they married pursuant to the laws of the Province of Ontario?
[ 40 ] Section 31 of the Marriage Act , R.S.O.1990, c. M.3, states:
Marriages solemnized in good faith
- If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although …, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.
[ 41 ] I have found that the parties intended to marry one another when they obtained a marriage licence and then performed a marriage ceremony before a qualified marriage officer in Florida. Neither party was then disqualified from marrying the other. They subsequently cohabited, lived together and publicly represented themselves as a married couple.
[ 42 ] There is no evidence or argument that either party intended to limit their marriage to the laws or jurisdiction of Florida. It would be unusual that a person following the laws of one state intended to be married within that jurisdiction but not married in another jurisdiction. I therefore find that that these parties’ intention at the time of their Florida marriage was to marry one another and thereafter to be so considered in accordance with the laws of all jurisdictions, including the Province of Ontario.
[ 43 ] The Applicant’s knowledge as to the Respondent’s misrepresentation of himself to Florida marriage officials did not extend to her understanding that that misrepresentation would invalidate her marriage. She was expecting a child at the time and wanted to marry the Respondent. She and the Respondent were advised at the Florida court house that the marriage ceremony could be conducted immediately. She and the Respondent considered that option and agreed to immediately proceed with the marriage ceremony. They thereafter cohabited, lived together and repeatedly represented to the public and their families that they were married to one another thereby confirming the purpose of the marriage ceremony.
[ 44 ] Even if the Respondent did not intend to marry the Applicant in the Florida ceremony, the Applicant’s singular belief that the 1995 ceremony constituted their union in marriage is sufficient, see Alspector v. Alspector , 1957 93 (ON CA) , [1957] O.R. 454 (C.A.) at para. 9 .
[ 45 ] This court has jurisdiction to declare a marriage valid, see Alspector v. Alspector 1957 93 (ON CA) , [1957] O.R. 454, (C.A.), p 7.
[ 46 ] The question is whether the misrepresentation by the parties in the marriage ceremony as to the identity of the Respondent, constitutes an irregularity which does not invalidate the marriage under s. 31 , or constitutes fraud invalidating the marriage.
[ 47 ] The Court of Appeal in Lantsis (falsely called Papatheodorou) v. Papatheodorou 1970 438 (ON CA) , [1970] O.J. No. 1642, para. 14 stated that:
….neither a fraudulent nor an innocent misrepresentation …… will of itself affect the validity of a marriage unless, of course, the misrepresentation induces an operative mistake, e.g., as to the nature of the ceremony, or deception as to the identity of one of the persons to the marriage, as when A is induced to marry B, believing that she is marrying C.
[ 48 ] The misrepresentation in this case, even be it fraudulent, was not as to the nature of the ceremony or the identity of one party to the other. Each of these parties knew the purpose of the ceremony was to join them in marriage. Each party knew the true identity of the other person they were marrying. There was no misrepresentation or mistake as between the parties. The misrepresentation here by both parties was to an external party, namely the State of Florida. The parties subsequently lived and represented themselves as a married couple over an extended period of time to many people.
[ 49 ] The intentional misrepresentation by each of the parties of the Respondent to Florida officials does not accordingly affect the validity of the party’s marriage to one another. I therefore determine their marriage to be a valid marriage under the laws of the Ontario Marriage Act .
[ 50 ] My above determinations regarding the representation by the Respondent as Mr. Muir and his marriage to the Applicant are contained in a Request to Admit served by the Applicant. The Respondent did not respond thereto. Silence in response to that request constitutes an admission of fact under the r. 22(4) of the Family Law Rules . That resulting admission supports my above determinations.
[ 51 ] I further determine that the parties have lived separate and apart since June 7, 2009. At the Applicant’s request, the Amended Application is hereby further amended to include a claim for divorce. The Applicant may proceed by way of motion for a decree of divorce upon filing of the requisite documentation. The Respondent is to be served substitutionally via ordinary mail with such motion material at 154 Niagara Falls Rd., Thorold Ontario, L2V-1H6.
CUSTODY AND ACCESS REGARDING THE CHILDREN
[ 52 ] The children have lived exclusively with the Applicant since separation. Violence between the parties occurred on the date of separation and prior thereto. The Respondent alleges the violence on separation was by each party towards the other during an argument. The Applicant’s arm was cut in this altercation. The Respondent showed bruising to his arm he told police were caused by the Applicant. Only the Respondent was charged and convicted of assaulting the Applicant with a knife on this occasion. The children saw some of this violence.
[ 53 ] The Respondent pled guilty to the above charge. He was incarcerated for two months and received two years probation which ends in February, 2012.
[ 54 ] This couple further physically fought in February 2009. A computer was thrown. Each said the other threw it. She testified he told her to leave the house. The Respondent stated she took and bent his glasses. He grabbed her and the Applicant suffered bruised ribs and a broken finger. The Respondent was arrested. The two children were interviewed on this occasion and told police that the mother drinks a lot and frequently yells at their father. They stated the Applicant threw something at their father on this occasion and were supportive of his version of the events. Neither child expressed any fear towards or mistreatment by their father. The police elected not to charge Ms. Smith.
[ 55 ] The Respondent was also charged with assaulting the Applicant and threatening her in 2002.
[ 56 ] The Respondent was subsequently charged for breach of bail terms and incarcerated from November 2009 until March 2010. The Respondent pled guilty to the charges in March 2010. The two year probation order prohibited the Respondent being within 25 meters of the Applicant.
[ 57 ] The Applicant moved herself and the children into a shelter where they lived for 4 months from October, 2009 until February 2010.
[ 58 ] The Office of The Children’s Lawyer has been involved in this case. Counsel for the OCL advises that the interviews with the children indicates they are doing well in the care of their mother and that it is in their best interest that the mother have sole custody. The OCL does not recommend access.
[ 59 ] The Applicant seeks sole custody of the children. She originally opposed access but now agrees to access conditional on the wishes of the children.
[ 60 ] The Respondent does not claim custody of his children. He claims access and would like to re-establish his relationship with the children. The parties agree that before the separation, the Respondent was involved with and cared for his children. His time with his daughter on occasion was difficult as he found her medical limitations at times challenging.
[ 61 ] The Applicant admits the Respondent posed no risk to their children before the separation and yet acknowledges that she and the Respondent had a volatile relationship.
[ 62 ] The Respondent has not seen his children since the separation but has been limited in doing so due to the terms of his bail and probation orders.
[ 63 ] Officer Bradley admitted that the Applicant following the separation frequently called her about the Respondent and that she may have told the Respondent that she had never witnessed a wife’s conduct a stronger campaign against a husband.
[ 64 ] Stacey has several medical issues. She spent a year in hospital in the first or second year after her birth. She is physically and mentally handicapped. While enrolled in grade 11 at school, her academic program is modified 80% to meet her needs. She is socially underdeveloped .Socially and academically she operates at a grade 3 level. She uses a wheel chair and needs help out of the wheel chair. At school, she uses leg braces and a walker.
[ 65 ] At 16 years of age, Stacey cannot be left alone, cannot control her bowels, wears a diaper and must be cleaned by another after a bowel movement. She can feed and dress herself but needs someone to bathe her.
[ 66 ] Stacey is involved in several extra-curricular school activities. The school has staff to care for her during the school day and during her after school activities. She is transported to and from school by Para Transpo.
[ 67 ] Stacey and her brother volunteer at the Ottawa Public Library. The mother has respite care one week out of six. Stacey and Kyle are away from home and at school from 8 a.m. until 4 p.m.
[ 68 ] At 14 years of age, Kyle is healthy, does well at school and is popular with his peers. He cares about and spends time with Stacey but does not provide personal hygiene care to her. Kyle is presently angry with his father according to the social worker.
[ 69 ] As the children are well cared for by their mother and the Respondent is not seeking custody, the Applicant shall have sole custody of the children.
[ 70 ] The Respondent is to have reasonable access to his children conditional upon the children’s individual agreement to such periods and form of access. I am not satisfied that the Respondent poses a risk of harm to the children. The Applicant is not now alleging the same.
[ 71 ] Access drop off and pick up and communication to arrange the same is to be conducted through a friend of the Applicant, Jennifer Ward, at any reasonable Ottawa location of the latter’s choosing. The only coordinates for Ms. Ward provided by the Applicant to the court is an email account I am told Ms. Smith has registered in Ms. Ward’s name. That email address is: www.smithkids @rogers.com.
[ 72 ] The Respondent is the father of these children. They are entitled to an ongoing relationship with him. It remains my hope that this relationship can be re-established. The Applicant is directed within two weeks from the date of this decision to provide the Respondent, via Ms. Ward, with an email address, registered in the name of the children only, to allow communication the children are willing to have in that form with their father. Again subject to the wishes of the children, the father is to have two continuous weeks’ access with the children during their summer school vacation, every second Easter school break and one week during the Christmas school break, each starting in 2012.
[ 73 ] The above access regarding Stacey is conditional upon Charlene Waghorn being present throughout the periods of access or the presence during such periods of a qualified female health care worker/provider.
[ 74 ] The parties are directed to not communicate anything negative about the other parent to either child. There has occurred in the past by each parent. One result of that is the current alienation of the children from their father.
INCOME STATUS OF THE APPLICANT
[ 75 ] The Applicant testifies that she has not worked since the date of the parties’ separation. For a number of years’ following the birth of the children, she stayed at home which was necessary particularly because of Stacey’s health and needs.
[ 76 ] The Applicant previously completed her first year of university. Before the birth of Stacey, the Applicant worked at a number of part time positions in Ontario as a bank teller and in customer service at an automotive race and sports venue. She worked in 1994-95 for about 6 months full time as a sales clerk at a store in Florida. She stopped this employment when she became pregnant. She worked as a secretary after this couple moved back to Ottawa for about eight months. She states she left this job at the request of her husband.
[ 77 ] The Respondent, with the Applicant’s approval and help, started a business in April 2008 by the name of Selection Health Care Services (“SHCS”). This company coordinated and provided part time or contract work by health care workers to hospitals in the Ottawa area. The work by the parties in SHCS was primarily done from their home via telephone, computer and fax machine. SHCS also occupied commercial office space for a brief period of time.
[ 78 ] The Applicant testified that SHCS was a successful enterprise and produced monthly net income of $10,000. The Respondent testified that the monthly net income of SHCS was $30,000 to $40,000.
[ 79 ] The Applicant testified that the business of SHCS came to a halt following the separation. She testified that over this 14 month period, each of them worked very hard in this venture. She stated that she dealt with a lot of the staff placed by SHCS, the bookings, the telephone communication, delivery of invoices etc. She worked at night about 40 hours per week while her husband worked approximately 16 hours per day. They both worked weekends. SHCS also employed some part time staff for a period of time.
[ 80 ] The Applicant testifies that she will never be able to work as the demands of Stacey now prevent her from working. She testified that she cannot seek employment as Stacey needs someone to be home when she returns from school.
[ 81 ] The Applicant further testifies that any income she could earn would be less than the cost of after school and school holiday day care for Stacey. No evidence was lead as to the cost of such day care or what community programs are or are not available for someone like Stacey beyond the mother’s respite care once per six weeks.
[ 82 ] Ms. Smith testified she is fearful an employer would not accept her necessity to leave work if the school calls in the case of an emergency involving Stacey. No evidence was lead as to any such call ever being received by the mother since or before the separation.
[ 83 ] The Applicant testified that this litigation has been very stressful but that her doctor has told her that she will be able to return to work after this litigation is over. There is no reason to discuss when she might be able to return to work with her doctor, other than her plan to do so or for qualification under ODSP.
[ 84 ] Notwithstanding Stacey’s serious limitations, I am not satisfied that Ms. Smith is unable to work because it is necessary that she be at home all day so that she can be present at 4PM when Stacey arrives from school on days when this daughter is not involved in after school activities.
[ 85 ] In 2008 and 2009, Ms. Smith performed clerical and administrative functions within a corporate setting up to some 40 hours per week.
[ 86 ] The social worker who interviewed the children and parents expressed the view that it is possible for Kyle at 14 to care for his sister after school for two hours. I am not satisfied that the Applicant will never be able to hold employment because of Stacey’s current needs. That may change when Stacey must leave school at 18 or 21 years of age.
[ 87 ] Despite an interim order directing payment of child support, it is not disputed that the Applicant has not received any support from the Respondent since the date of separation beyond $250.
[ 88 ] Upon separation, this couple owned a home and a second residence. Both properties were lost to creditors. Upon separation, Ms. Smith remained in the family home until she moved with the children into a shelter for 4 months and then into subsidized housing.
[ 89 ] The activities of SHCS ground to a halt as the parties after separation could not work together and needed the other to carry on that business. The Respondent subsequently started a SHCS #2 but has been unable to make a go of that business for several reasons.
[ 90 ] The Applicant in her 2009 financial statement declares monthly income versus expenses of $400 and $800 respectively. The Respondent’s 2009 financial statement shows income and expenses of $1,020 and $5,100 respectively. Those expenses include the then monthly mortgage payments of $2,450 which no longer exist. Neither party, as required, filed current financial statements on the eve of this trial.
INCOME STATUS OF THE RESPONDENT
[ 91 ] The Respondent testifies that his back injuries prevent him from working. He states he lost the SHCS business as a result of the separation and because hospitals in the Niagara area do not engage part time employment through contractors. The Respondent testified that his dream is to open a pin ball museum in the Niagara area. He has purchased four machines currently but states Mrs. Waghorn paid for them.
[ 92 ] His history of employment according to the testimony is:
(a) He told the Applicant he graduated from Algonquin College and then obtained qualification as a Certified General Accountant.
(b) Before leaving for Florida, he worked as a controller at an athletic club setting up computer systems and training staff on such systems.
(c) He worked on the weekends as a bar man and club bouncer.
(d) In Florida, he worked as an accountant at Volley Air Gear and held the title of General Manager.
(e) He worked as a bar tender at the Daytona Valley Kennel Club.
(f) Upon the couples return to the Niagara area, the Respondent worked as an accountant at a company in that area. He states that he set up the company’s computer system. He also established a computer store at which he worked part and then full time.
(g) On moving to Ottawa in 1997, the Respondent worked on his own setting up computer systems for clients.
(h) He then worked a full year in 1998 as an accountant at a local accounting firm.
(i) The Respondent then opened a business entitled Total Accounting and Computer Solutions (“TACS”), providing services including the installation of computer software programs and training, creating net work systems for companies’ computers, staff computer training, installing computer security systems plus completion of corporate and individual income tax, and GST returns. The Applicant states that $20,000 of the $30,000 net monthly profit in the period 2008 to2009 came from TACS while an additional $10,000 was earned monthly by SHCS.
(j) The Applicant alleges that the Respondent, in the 1999 to 2001 period, on occasion drove a limousine and worked part time as a school janitor.
(k) In 2007, the Respondent worked full time for about 8 months as an accountant for a company which provided tax services.
(l) In 2008, the Respondent bought SHCS for $1.00 plus the obligation to pay unpaid salary to the vendor. The Respondent, at 16 hours per day, was working full time at SCHS and TACS.
(m) The couple bought a new home, heavily mortgage, for $408,000 in November 2008.
(n) The above two properties were lost to creditors due to default of payments shortly after the separation.
[ 93 ] The Respondent was required to stop work for one year in 2000-2001 due to a back problem. He states that he suffers from spinal synopsis or the crushing of the spinal cord and has significant scar tissue from a back operation related to this condition. His wife testified that the Respondent went on ODSP in 2000 due to this back condition and the family was forced to use a food bank for groceries during this period.
[ 94 ] I have no medical reports regarding the Respondent despite this court ordering production of the same. I have a short letter dated November, 2011 from Doctor VanRensburg which states that the Respondent is still disabled and suffers from anxiety occasioned from stressful situations. This doctor therefore concludes that the Respondent cannot be gainfully employed.
[ 95 ] I also have a December, 2011 letter from ODSP stating that the Respondent has been receiving that benefit from March 2000 to January 2008, was ineligible from January 2008 until May 2009 and was then reinstated and has received that benefit since then.
[ 96 ] The Respondent states he also suffered from a sciatic nerve condition in 2008 and again more severely in February, 2009. He states he had an operation in March 2009. He was able however to continue the SHCS work until the June 2009 separation. The evidentiary basis as to the Respondent’s condition and capacity to work is severely undermined by the absence of past and current medical reports by those treating his back.
[ 97 ] The Respondent and Mrs. Waghorn attempted unsuccessfully to start up SCHS #2 in May until July 2010 in Ottawa. That lack of success however demonstrates the Respondents’ acknowledgement as to his capacity to work despite his above medical conditions. Due to the absence of success, the Respondent and Mrs. Waghorn moved to the Niagara area. He testified that he tried to conduct the same business in the Niagara area from September, 2010 until March 2011 but obtained no contracts from health authorities in that area.
[ 98 ] The Respondent testified that he has delivered some 50 CVs seeking employment as an accountant since September 2010 in the Niagara area but has received no employment offers. He states he has also posted ads seeking employment in the accounting field with no success. I have no corroborating evidence of these attempts to obtain employment. This testimony however acknowledges the Respondent’s belief that he can work despite his ailments.
[ 99 ] Mrs. Waghorn was present in court during the final day of the trial but was not called as a witness.
[ 100 ] The lack of information from the Respondent is compounded by the absence of income tax returns and Notices of Assessment, despite the adjournment in December to obtain them. The only documentary information I have is:
(a) The CRA tax summary for 2006 which lists the Respondent’s line 150 income as $23,700.
(b) The CRA tax summary for 2007 which states his line 150 income as just below $26,700.
(c) The unsigned 2008 tax return which states his line 150 income was $78,508.
(d) CRA July 2011 Notice of Assessment to Selection Health Services Inc., indicating the departments’ estimate that the company owes some $97,000 for unpaid GST/HST.
[ 101 ] I am not convinced I am getting full financial disclosure from Mr. Waghorn. He has worked piecemeal in the past doing tax returns, computer installations and computer training. He has supplemented his income with part time work. To his credit, Mr. Waghorn is obviously bright, resourceful, entrepreneurial and has more than one skill set.
[ 102 ] I am not satisfied that the Respondent has not been earning some limited money on the side since the 2009 separation.
[ 103 ] The court may impute an amount of income to a spouse it considers appropriate where the spouse is intentionally under-employed or unemployed and where the spouse has failed to provide income information when under a legal obligation to do so, see Federal Child Support Guidelines , SOR/97-175 19. (1)(a) and (f).
[ 104 ] Mr. Waghorn is not applying his best efforts to earn a living. I accept that his back is a real problem however it does not prevent him from working as demonstrated by the evidence. I am satisfied that the Respondent is attempting to avoid paying support by making minimal efforts to support himself and/or not disclose all his income received. There is no justification for paying virtually no child support since June 2009.
[ 105 ] For the above reasons including his non-compliance with a court order to produce financial records, I am imputing an annual income to the Respondent in the amount of $35,000 from November 1, 2010 for the purpose of support. I select November 1, 2010 to provide a reasonable period post release from jail to obtain employment.
[ 106 ] The $100,000 argued by the Applicant is beyond anything ever earned by this Respondent. The $20,000 or $30,000 monthly profit was the income of SHCS, not the Respondent. It also was the result of the joint effort of the parties. The amount of $100,000 is not reflective of the evidence pre or post separation.
CHILD SUPPORT
[ 107 ] The Respondent is required to pay the following child support based on the above imputed income on the first of each and each month thereafter:
(a) On an annual income of $35,000 the Respondent commencing November 1, 2010 and on the first of each month thereafter, the sum of $508 per month.
(b) Sixty per cent (60%) of s. 7 expenses from February 1, 2012 forward pursuant to the Child Support Guidelines (ONTARIO) (O. Reg. 391/97, as am.) and listed in s. 7 (a) to (e). I have no evidence as to such past expenses.
SPOUSAL SUPPORT
[ 108 ] The Applicant has standing under the Family Law Act to claim the same.
[ 109 ] As to need, the Applicant currently requires financial assistance. Given the income I am imputing to the Respondent, he has some financial ability to pay.
[ 110 ] This is a marriage of material duration. There was division of responsibilities between this couple likely emphasized by Stacey’s illness and limitations. In short, this couple agreed the Applicant could not work for several years after Stacey’s birth. Her work skills were accordingly interrupted and when Ms. Smith finally returned to work, the Respondent urged her to return to a stay at home. This division of responsibility changed in 2008 and 2009 regarding SHCS with each party working at that company. The wife however maintained primary responsibility during this period for the children.
[ 111 ] This couple has always financially lived close to the line and never enjoyed a wealthy life style. Ms. Smith prior to marriage did not work in Florida due to the absence of resident qualifications. They received a notice of termination of lease due to non-payment of rent. Periods of financial improvement for them in 2008 and 2009 were accompanied by mortgage default and the loss to both properties to creditors. Following separation, payment default was made to the storage company of their personal property which each party seems to have abandoned.
[ 112 ] Notwithstanding the above, Ms. Smith presently has an inferior standard of living to the Respondent. That higher standard of the husband is due primarily to the economic position of his current partner.
[ 113 ] The Applicant has delayed her economic employment opportunities for several years due to the structure of the parties’ relationship and the needs of their children.
[ 114 ] One of the principal unknowns facing this couple is Stacey’s future needs, the costs related thereto after she can no longer remain in school and the employment impact on the custodial parent when that occurs.
[ 115 ] At the present time however, it is premature to conclude that the Applicant will never be able to hold employment. She requires a period to re-enter the work force and make the necessary adjustments for the children’s after school and vacation care. That said, I believe that the Applicant when she finds employment will likely be at a level similar to when she worked before marriage . The Applicant’s employment level has suffered during the marriage in the form of ability over time to earn a higher salary or position. The Applicant’s present position is below that she experienced while married. The wife is entitled to spousal support on a compensatory and non-compensatory basis.
[ 116 ] The parties shall by June 1st, of each year mail to the other a copy of their previous year’s income tax return and Notice of Assessment and Reassessment. This obligation will include the year 2010 and in the case of the Respondent, the year 2008. The Applicant in this regard shall by April 1, 2012, provide the Respondent with a mailing address or post office box address to enable this to occur.
[ 117 ] At a $35,000 imputed income, the parties’ former lifestyle cannot be replicated such that the Applicant can experience her former lifestyle via a support order. The money is not there especially given the priority of child support.
[ 118 ] Based on the Spousal Support Advisory Guidelines, the Respondent is liable to the Applicant for past spousal support in the amount of $300 per month based on imputed income to her of zero and $35,000 to the Respondent from November 1, 2010. Such spousal support shall be paid on the first day of each and every month thereafter.
[ 119 ] The above order of spousal support is subject to review as of January 1, 2015 when the position of the Applicant should be more definite or sooner in the case of a material change of circumstance.
RESTRAINING ORDER
[ 120 ] The parties have been separated two and one half years. The Respondent has remarried and is living hundreds of kilometres from Ottawa. There are no recent allegations of altercations between the parties. There is currently no evidentiary basis to grant such an order. Such orders should not be granted lightly. The numerous past allegations and orders on this subject will remain accessible should circumstances arise in the future.
[ 121 ] The same reasons apply to the Respondent’s request for a restraining order. No such order is being granted to either party.
COST
[ 122 ] The Applicant seeks $18,000 costs on a partial indemnity basis. I agree that the Respondent caused additional work to be incurred because he refused to disclose medical and tax information as required and ordered. The Applicant has been successful in this action. The Respondent has not been.
[ 123 ] The $18,000 sought, according to the draft Bill of Cost, equals full indemnity. Partial indemnity is the appropriate level in this case. I therefore fix costs on that lower scale payable by the Respondent to the Applicant in the amount of $10,800, inclusive of disbursements and taxes. Those costs shall become payable September 1, 2012.
Kane J.
Released: February 27, 2012
COURT FILE NO.: FC-09-2508
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HEATHER SMITH Applicant – and – DAVID WAYNE WAGHORN Respondent REASONS FOR JUDGMENT Kane J.
Released: February 27, 2012