COURT FILE NO.: FC-20-000304 DATE: 2023-05-16
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Elzbieta Whittaker Applicant
– and –
Scott Allan Whittaker Respondent
COUNSEL: N. Fortier, for the Applicant Self-represented, for the Respondent
HEARD at St. Catharines: May 10, 2023
THE HONOURABLE JUSTICE J. R. HENDERSON
DECISION ON MOTION
INTRODUCTION
[1] The applicant brings two motions for interlocutory relief in this application. In summary, the applicant requests the following orders:
- That the respondent provide further specific disclosure with respect to his income for the years 2021 and 2022.
- That the respondent pay prospective periodic child support to the applicant for their two children based upon the imputation of income to the respondent.
- That the respondent pay retroactive child support to the applicant backdated to May 1, 2021.
- That the respondent pay his share of s.7 expenses for the children for 2021 and 2022.
- That the respondent’s parenting time with the children be suspended pending the completion of an investigation by Family and Children’s Services Niagara (“FACS”).
- Costs of these motions.
[2] The position of the respondent is that he has provided all of the disclosure requested, that he will pay a reasonable amount for the support of the children, that he has not been consulted about the s.7 expenses, that his parenting time should not be suspended or supervised, and that the legal costs incurred by the applicant were unnecessary.
BACKGROUND FACTS
[3] The parties have two children, Westen, born July 30, 2013, and Alexa, born August 2, 2017. The parties were married, and they lived together with their children in Texas from approximately January 2015 until March 2019, at which time they separated. The applicant and the two children moved to Ontario shortly after the separation.
[4] The current effective court order is a Final Decree of Divorce (the “Divorce Decree”) granted by a judge of the 300th Judicial District of Texas, signed July 23, 2019. Pursuant to the Divorce Decree the parties were divorced, the applicant and the respondent were named as parent joint managing conservators, the applicant was granted primary residence of the children, and the respondent was granted parenting time that included the first, third, and fifth weekends of the month and Thursday evenings.
[5] I note that the respondent was not required to pay child support pursuant to the Divorce Decree because of the expenses incurred by the respondent in exercising parenting time while he lived in Texas and the children lived in Ontario.
[6] In a decision dated April 14, 2021, Justice Scott recognized the Divorce Decree and deemed it to be an order of the Ontario Superior Court of Justice. Justice Scott also declared that the Ontario Superior Court of Justice had jurisdiction over the matters of decision making, parenting time, and child support in this proceeding.
[7] The parties disagree as to when the respondent moved to Ontario, but I accept that he permanently moved to Ontario at some point in 2021.
[8] The respondent is a qualified physical therapist with a degree from D’Youville University. He is licensed to practise physical therapy in the United States, but not in Canada. I find that the respondent became employed as a physical therapist in late 2021 when he accepted a position with Sigma Health Rehab (“Sigma”) to provide physical therapy services at the Ellicott Center for Rehabilitation in Buffalo, New York.
[9] A letter from Sigma, combined with the report of a private investigator, confirms that the respondent was working the equivalent of full-time hours at the Ellicott Center for most of 2022. I accept that the respondent voluntarily left his job with Sigma on October 17, 2022, to take another job as a physical therapist.
[10] The respondent has not formally paid any amount of child support or contributed to any s.7 expenses for the children since he moved to Ontario.
[11] Regarding parenting time, I find that the respondent had been exercising parenting time with the children pursuant to the Divorce Decree until an incident of domestic violence occurred in February 2023 between the respondent and his current wife, Crystal Butler (“Crystal”). It is alleged that the two children, Westen and Alexa, were present at the respondent’s home at the time of the incident.
[12] As a result of the February 2023 incident, the respondent was prohibited by order from attending Crystal’s home. However, the respondent breached that restraining order by breaking in and entering Crystal’s home shortly after the order was issued. The respondent is now charged with criminal offences as a consequence of that break-in.
[13] FACS has undertaken an investigation. The investigation discloses that there is a history of multiple domestic violence incidents involving the respondent and Crystal, and that the police have attended their home several times because of allegations of violence. The FACS investigation also discloses that the respondent has an alcohol abuse problem, which the respondent now acknowledges.
[14] On an urgent motion Justice Reid made an order dated March 30, 2023, suspending the respondent’s parenting time for two weeks. On the return of the motion on April 13, 2023, Justice Walters reinstated the respondent’s parenting time, but ordered that it was to be supervised by his mother, Lisa Whittaker. Justice Walters also ordered that the respondent was prohibited from consuming any alcohol from three hours before the commencement of any parenting time, and throughout the entire parenting time.
ANALYSIS
[15] Regarding the request for further disclosure, I find that the financial disclosure from the respondent has been slow and sporadic. Various pieces of disclosure with respect to the respondent’s income are now before the court, but financial disclosure is far from complete.
[16] For example, the respondent has provided two separate one-page documents titled “Statement of World Income” for 2020 and 2021, but those documents contain no attachments, and they appear to be parts of more comprehensive tax returns. Further, the respondent has provided a Notice of Assessment for 2021, but the page that contains a statement of his employment income is missing. Still further, the respondent has recently provided a copy of his 2022 Canadian tax return, but the attachments and backup documents are not included.
[17] In summary, the respondent has provided some financial disclosure, but it is incomplete and does not comply with the rules of this court.
[18] Accordingly, I hereby order that the respondent forthwith produce the documents requested in paragraphs 1 (a) to (d) of the applicant’s notice of motion dated February 21, 2023.
[19] Regarding child support, I find that the respondent has been working as a physical therapist since sometime in 2021. Further, I find that the respondent’s employment has been on a full-time, or close to full-time, basis since at least January 2022.
[20] The applicant asks that I impute income to the respondent in the amount of $124,000 per year based upon a job posting from Sigma in October 2022 in which it appears that Sigma advertised for a physical therapist to replace the respondent after he left his employment with Sigma.
[21] For the purposes of this motion, I do not accept the applicant’s submissions regarding the imputation of income to the respondent. The Sigma job posting refers to an hourly rate for a physical therapist that ranges between $36.50 per hour and $44.35 per hour. It also states that the job is a per diem job, and there is no suggestion that the job involves a work week that is full-time or 40 hours per week. It does not mention an annual salary.
[22] At this stage, the court is being asked to make a temporary order for child support. Therefore, it is my obligation to make a child support order that is adequate for the short term. It should be an amount that will reasonably get the parties through to a trial, at which point all of the evidence can be presented and tested in a trial setting.
[23] In my view, the best evidence as to the respondent’s income is the respondent’s 2022 Canadian tax return, even though all of the attachments are not included. The respondent has acknowledged that he worked most of 2022 at Sigma. He has deposed that he voluntarily left the Sigma job to take another job, and then left that job to take yet another job as a physical therapist. Thus, I accept that the 2022 tax return contains good evidence as to the respondent’s annual earnings as a physical therapist.
[24] The 2022 tax return shows that the respondent’s gross income from employment was $94,794. The respondent submits that I should use the line 150 net income shown in his tax return, which is $84,863, as his income for child support purposes. However, I note that the gross income has been reduced by approximately $9,930 because of deductions that the respondent has made for business and personal expenses. I find that most of those business and personal expenses should be added back into the respondent’s income for the purpose of calculating the amount of child support.
[25] The only business and personal expenses that I would allow for the purposes of child support would be deductions for business licences, business memberships, and professional fees. A schedule in the respondent’s 2022 tax return shows that these expenses amount to approximately $671.
[26] Accordingly, I find that the respondent’s annualized income for child support purposes, based upon the 2022 income tax return, is $94,123.
[27] I will not make a retroactive child support order on this motion for temporary relief. In my view, there are far too many unresolved factual issues, including issues as to when the respondent was working, whether the respondent was working full-time, the amount the respondent was earning, and whether the respondent was intentionally underemployed. These matters should be dealt with at a trial.
[28] Similarly, I will not make any retroactive order with respect to the payment of s.7 expenses. There are factual issues with respect to s.7 expenses including whether or not the respondent was consulted about the expenses and whether the expenses were reasonable in the circumstances. Further, I am unable to properly apportion past s.7 expenses as I do not have clear evidence of the respondent’s income or the applicant’s income at the relevant times. Again, these are issues that should be dealt with at trial.
[29] For these reasons, I order that the respondent shall pay child support to the applicant for the two children in the amount of $1,399 per month commencing May 1, 2023, based on the respondent’s current income of $94,123 per year. This order is a temporary order made without prejudice as to retroactivity, entitlement, and quantum. A support deduction order will issue.
[30] Regarding parenting time, the two issues of concern regarding the respondent’s parenting time are the respondent’s abuse of alcohol and the exposure of the children to domestic violence.
[31] I accept that the respondent has acknowledged his alcohol problem and that he is now regularly attending Alcoholics Anonymous meetings. He is also enrolled in programs that are focused on assisting him with addiction and relationship issues. This, in my view, is a step in the right direction. Furthermore, the respondent is now subject to charges in the criminal courts, and therefore he will be subject to a recognizance in the criminal proceedings.
[32] Both the intervention of the criminal courts and the respondent’s enrolment in supportive programs are relatively recent events. One hopes that matters will improve for the respondent, but it is not apparent at this stage that the respondent’s issues are entirely resolved. Therefore, I do not accept that the respondent should have extensive unsupervised access.
[33] The respondent has had significant parenting time with the children since separation. If at all possible, the extent of the respondent’s parenting time with the children should remain unchanged. Accordingly, I find that the respondent’s parenting time as set out in the Divorce Decree should continue provided that it is supervised.
[34] I do not agree with the submission made by the applicant’s counsel that the respondent’s mother is not an appropriate supervisor because she did not acknowledge the respondent’s issues in her affidavit. In my view, the respondent’s mother is a reasonable and adequate supervisor.
[35] Therefore, regarding parenting time, I order that the respondent’s parenting time and rights as set out in the Divorce Decree are reinstated on a temporary without prejudice basis on condition that the respondent’s mother, Lisa Whittaker, be present as a supervisor during all of his parenting time, save and except for the time in which the respondent drives the children back and forth to school.
[36] I also confirm that paragraphs 3, 4, and 5 of the order made by Justice Walters will continue on a temporary without prejudice basis.
[37] Regarding costs, the applicant is the successful party on these motions and is therefore entitled to costs on a partial indemnity basis pursuant to rule 24(1) of the Family Law Rules.
[38] I reject the respondent’s submission that the applicant’s motions were not necessary, and therefore the applicant should not be entitled or costs.
[39] I have reviewed the bill of costs submitted on behalf of the applicant. I find that the full indemnity amount set out in the bill of costs of $18,800 plus HST is very high for a motion of this nature. Accordingly, I am going to reduce the overall full indemnity fees, and further reduce costs to a partial indemnity scale.
[40] Therefore, I hereby order that the respondent pay the applicant’s costs of these motions on a partial indemnity basis in the amount of $7,500 all-inclusive, payable within 90 days.
CONCLUSION
[41] For these reasons, it is ordered:
- That the respondent forthwith produce the documents requested in paragraphs 1 (a) to (d) of the applicant’s notice of motion dated February 21, 2023.
- That the respondent pay child support to the applicant for the two children in the amount of $1,399 per month commencing May 1, 2023, based on the respondent’s current income of $94,123 per year. This order is a temporary order made without prejudice as to retroactivity, entitlement, and quantum.
- That a support deduction order will issue.
- That the respondent’s parenting time and rights as set out in the Divorce Decree are reinstated on a temporary without prejudice basis on condition that the respondent’s mother, Lisa Whittaker, be present as a supervisor during all of his parenting time, save and except for the time in which the respondent drives the children back and forth to school.
- That the respondent pay the applicant’s costs of these motions on a partial indemnity basis in the amount of $7,500 all-inclusive, payable within 90 days.
J. R. Henderson J.
Released: May 16, 2023
COURT FILE NO.: FC-20-000304 DATE: 2023-05-16
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Elzbieta Whittaker Applicant – and – Scott Allan Whittaker Respondent
DECISION ON MOTION
J. R. Henderson J.
Released: May 16, 2023