COURT FILE NO.: FC-20-304

DATE: 20241213

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Elzbieta Whittaker, Applicant

AND:

Scott Allan Whittaker, Respondent

BEFORE: The Honourable Mr. Justice Robert B Reid

COUNSEL: Applicant, self-represented

M. Belansky, Counsel, for the Respondent

HEARD: November 13, 2024

decision on motion

Introduction:

[1] Within the context of a Motion to Change, this court heard a motion brought by the applicant dated July 30, 2024, and a cross motion by the respondent dated August 1, 2024, each asking for temporary relief.

Background:

[2] The parties are parents of WW, born July 30, 2013, and AW born August 2, 2017.

[3] The parties married in Ontario in August 2011. They moved to Texas in January 2015 to facilitate the employment of the respondent as a physical therapist licensed to practice in the United States but not in Canada. A separation occurred in or about July 2018. A final decree of divorce was granted in the 300th Judicial District of Texas dated March 7, 2019.

[4] The applicant returned with the children to Ontario in July 2019. The respondent deposes that he returned permanently to Ontario at the end of the summer in 2021 and, while the applicant considers that the respondent’s return to have occurred earlier, that disagreement is of no consequence to these motions. The respondent works as a physical therapist in Buffalo, New York, commuting daily from his home in Ontario.

[5] The divorce judgment contained detailed terms as to parenting made on consent and was signed July 23, 2019. The parties were to be “joint managing conservators” which appears to be the functional equivalent of an Ontario order of shared decision-making responsibility. The terms included alternative provisions depending on whether the parties lived more or less than 100 miles apart, presumably to account for the fact that at the time, the applicant intended to return or had returned with the children to Ontario and whether and when the respondent would choose to do so was not clear.

[6] By order dated April 14, 2021, Scott J. recognized the Texas divorce decree, deeming it to be an order of the Superior Court of Justice including jurisdiction over decision-making and parenting time for the children.

[7] This court has made previous temporary orders amending the parenting terms contained in the divorce decree:

a. L. Walters J. endorsed in April 2022 that parenting time exchanges should take place at the Tim Hortons restaurant located at 8089 Portage Road in Niagara Falls, Ontario and that the parties should remain in their cars during the exchanges without communication between them. That order prohibited the videotaping of the exchanges by either party.

b. An ex parte temporary order was made by me on March 30, 2023, suspending the respondent’s parenting time due to a concern of domestic violence and alcohol abuse between the respondent and his then current spouse from whom he has subsequently been divorced.

c. On April 13, 2023, L. Walters J. made an interlocutory order reinstating parenting time on the condition that it be supervised by the respondent’s mother, save and except when the respondent is driving the children back and forth to school. Her endorsement indicates that the supervisory term was on the consent of the respondent until an ongoing FACS investigation was completed. The respondent was ordered not to consume alcohol from three hours before and throughout the duration of the parenting time.

d. On May 16, 2023, Henderson J. made a temporary and without prejudice order that the respondent’s parenting time as set out in the divorce decree should continue under supervision by the respondent’s mother. He did not accept the applicant’s submission that the respondent’s mother is an inappropriate supervisor and instead found her to be reasonable and adequate. He continued the exception to supervision during the time when the respondent drives the children back and forth to school.

[8] At the assignment court of October 10, 2024, the matter was set for a 10-day trial to be heard during the May 12, 2025 sittings.

Relief requested:

[9] In the lengthy and detailed notice of motion of the applicant, she seeks an order changing parenting time from the status quo established by the divorce decree, and which has been in place (other than the location of the exchanges and supervision) since the divorce order was made.

[10] She also requests a “no harassment” clause, including an order that the parties mutually respect the parenting time of the other, and that they not attend any events, activities, or appointments that occur during the other parent’s parenting time, including school meetings, extracurricular activities and medical appointments.

[11] As well, she seeks disclosure of the identity of the respondent’s employer.

[12] The respondent requests that the parenting time provisions of the divorce decree not be changed (including the provision for electronic communication) and that the temporary order imposing supervision be vacated. Further, the respondent requests an order permitting him to register the children in certain extracurricular activities; requiring the parties to ensure the children’s attendance at those activities and allowing both parties to be present regardless of the parenting schedule. The respondent also seeks an order requiring the parties to ensure the children’s attendance at school.

Analysis:

[13] It is well-established that courts should not disrupt status quo parenting arrangements on an interim basis in the absence of evidence that the status quo is harmful to the children or that a change is necessary to meet their best interests. This reluctance to order an interim change comes from the commonsense proposition that it would be disruptive to the children to have changes made on a temporary basis and then potentially have them reversed following a trial on the merits.

[14] In this case, the trial is scheduled to take place in approximately five months and is expected to take 10 days including the issues of parenting time as well as child support.

Relief requested by the applicant:

[15] The applicant has provided a detailed proposal as to parenting time both on a regular ongoing basis and as to special days, holidays, and vacation time. Many of the proposals relate to events that will postdate the anticipated trial, for example Father’s Day, summer vacation, and Thanksgiving. For others, such as the administration of Holy Sacraments, no dates were identified.

[16] The applicant has been frustrated by what she considers to be the inflexibility of the respondent in refusing to fine-tune the parenting terms in the divorce order. She submits that although the Texas divorce order contained terms that were very detailed and contemplated the relocation of the parties, there are still provisions that do not fit the parties’ current situation, living relatively close to one another in Ontario.

[17] Many of the changes appear to be requested to make adjustments that will lessen conflict between the parties from the applicant’s point of view.

[18] For example, the applicant alleges that the provisions of the divorce order that provide for weekend parenting time beginning on the first, third and fifth Friday of each month and ending at the time the child’s school resumes after the weekend are unclear in that the parties cannot agree on which months have five weekends. Therefore, she proposes an easier schedule with alternating weekends which, by the way, would increase her parenting time and reduce that of the respondent. Although I consider counting Fridays should not be a difficult calculation, I see that conflict as a sign of how fractious the relationship between the parties has been.

[19] Another example relates to summer parenting time. The divorce order provides that the respondent must give written notice by April 1 each year setting out his 30 days of summer parenting time which are to be taken in no more than two separate periods of at least seven consecutive days. The applicant considers that provision to be unfair in that she cannot schedule her own summer activities and those of the children until after the respondent makes his selection. She proposes alternating 15-day periods throughout the summer with her having the first two-week period in alternating years.

[20] The divorce order specifically gives each party the right to consult with schools and health care providers regarding the children, and the right to attend school activities. There is no constraint based on whose parenting time is in effect at the time of the activities. The applicant is asking for a change in that provision, as noted above.

[21] The “non-harassment” request would be a significant restriction in parenting involvement. Asking that the parties not attend any events, activities, or appointments including extracurricular activities and medical appointments that occur during the other’s parenting time (in addition to removing the court-ordered right to attend school activities to which I have referred), is a departure from the scheme set out in the divorce order.

[22] The applicant deposes that the respondent and his parents have been seen videoing the children at extracurricular events, and that doing so makes the applicant and the children uneasy. That position is an indication of how the applicant views matters through the lens of her personal history with the respondent. It makes more sense to assume that for involved parents and grandparents, making videos of the children’s participation in extracurricular activities is a normal and natural activity. If the children are upset by the making of videos, it would be because of input from the applicant. A healthier response from the applicant would be to reassure the children that videoing is a sign of engagement and support.

[23] In effect, the applicant is attempting to renegotiate the details of the parenting time regime in a way that she believes may reduce conflict and be more equitable as between the parties (meaning more beneficial to her). There is little apparent benefit to the children in the proposed changes. While it can be said that if conflict between the parties is reduced, there will be a consequent benefit to the children, it is not reasonable to make an order in the name of conflict reduction granting changes requested by one party when the other party is opposed, in the absence of clear harm or a serious negative effect on the children’s best interest.

[24] Based on the untested affidavit evidence filed, I conclude that the proposed temporary changes in the divorce order including a non-harassment provision are not necessary in the children’s best interest.

[25] Presumably one of the issues for the court at trial will be whether a material change in circumstance has occurred following the relocation of both parties to Ontario from Texas following the divorce decree. It is not necessary or appropriate for this court to opine on that matter at this interim stage.

[26] Based on the foregoing, there will be no change to the status quo as to the parenting time provisions in the divorce order as requested by the applicant. The children appear to be thriving. The parties are five months away from trial on the merits and there is insufficient evidence to satisfy me that their best interests are being harmed by a continuation of the status quo.

[27] Quite apart from the litigation, it is incumbent on the parties, and part of their responsibility as parents, to reduce their level of interpersonal conflict in the interest of the children. Although I was advised that mediation was tried and failed, a revisiting of some form of alternative dispute resolution is worth considering given the passage of time.

[28] The applicant requests that the name of the respondent’s employer be disclosed. The respondent has resisted providing that information based on a concern that the applicant will abuse the information to his detriment. The applicant denies that she has made or will make improper use of the information when provided.

[29] The Family Law Rules are clear that full financial disclosure must be made in cases such as this, where support is one of the issues. Misuse of that information, especially in such a way as could jeopardize employment, would not only be counterproductive to the applicant but would be met with serious consequences in a case where the propriety of the parties’ behaviour is a significant issue.

[30] As a result, the applicant’s motion is dismissed except for the request for the employer identity, which is to be provided by the respondent within 10 days.

Relief requested by the respondent:

[31] I turn now to the respondent’s request for relief as contained in his notice of motion.

[32] As is obvious from my decision on the applicant’s motion, I deem it inappropriate to make minor changes to the divorce order in advance of trial in the absence of evidence that the status quo is harmful to the children or that a change is necessary to meet their best interests.

[33] It is unnecessary for me to make an order reinstating electronic communication as required by the divorce order. That order requires both parties to make the children available daily between 6:30 and 7:30 p.m. and if a call is missed, to facilitate a return call within an hour. That was not a suggestion, but a requirement. To the extent that the applicant is not permitting such communication to happen, she is in breach of the order, and is subject to enforcement proceedings with the potential for an adverse costs award. I note that the parties are required to use the “Talking Parent” app to convey information concerning the children and if there are events, such as extracurricular activities, that interfere with the electronic communication schedule, the other party should be advised. A suggestion by the applicant that the calls constitute an invasion of privacy for her other children present in her home is an example of how the applicant is making excuses to avoid compliance with the order and shows how the best interest of WW and AW is apparently not the applicant’s main focus.

[34] I have already dealt with the request by the applicant for an order preventing attendance at children’s events. It is unnecessary for me to make the order requested by the respondent giving specific permission to attend. Likewise, as to enrollment in extracurricular activities, there is no need to specifically order what otherwise is not prohibited. The requirement for the children to attend at school is a shared responsibility and should not require an order. The overarching consideration must continue to be the best interest of the children.

[35] The most contentious claim for relief by the respondent is the request that the supervision of parenting time pursuant to the temporary orders of Justices Walters and Henderson in April and May 2023 be rescinded.

[36] The affidavit material filed by the applicant seeking a supervision order in March 2023 contained allegations of domestic violence and other criminal activity involving the respondent in his relationship with his second spouse, Crystal Butler, and allegations of his drinking alcohol, sometimes while driving and sometimes in the presence of the children. A FACS investigation was underway at the time.

[37] In May 2023, the FACS investigation was completed with no further steps taken. The break and enter charge against the respondent involving the premises of Ms. Butler was withdrawn. As of June 2024, he was placed on probation for two years following a guilty plea to failing to comply with a court order, a term of which probation is that he keep away from Ms. Butler. He is now divorced from her. He has admitted to being an alcoholic but deposes that he has taken several programmes to manage that condition and has attended Alcoholics Anonymous. In short, the respondent submits that the conditions which created concern for the court at the time the supervision orders were made no longer exist, such that the provision should be rescinded.

[38] The respondent also relies on the fact that his mother normally lives in Parry Sound with her spouse and has obligations to him and to other members of her family. She has been forced to reside with the respondent at personal inconvenience to her to facilitate his parenting time with the children.

[39] The applicant bases her opposition to the respondent’s request on her concern about his admitted alcoholism. She is willing to have the supervision order vacated if the respondent agrees to random drug and alcohol testing. The apparent abatement of her concerns relating to family violence are consistent with the conclusion of the FACS investigation where no ongoing concerns were identified.

[40] The matter of supervision and the identity of the supervisor are two different matters. The respondent proposed his mother as supervisor, and that proposal was adopted by the court in making the supervision orders. It is within the purview of the respondent to seek an amendment of the court order changing the identity of the supervisor. He did not do so as part of the relief sought in this motion.

[41] Based on the facts to which he deposes, the respondent has made strides to cope with his alcoholism. There have been no reported incidents or alcohol- or drug-related concerns in over 18 months. However, based on the untested material contained in her affidavits, the applicant continues to express concerns about the reliability of the respondent to avoid consuming alcohol while parenting the children without the assurance that supervision provides. It is well-understood that alcoholism is a continuing condition which ideally can be controlled by abstinence, which in turn relies on the commitment of the respondent.

[42] I endorse the general principle that supervision orders should be of a temporary nature. The orders of Justices Walters and Henderson have been in effect for a significant period. On the other hand, as I have noted in my reasons for dismissing the applicant’s request for changes to the status quo, there is merit to maintaining a situation that has been in effect, given the short period until the scheduled trial. The children have been thriving under the present regime. A change to the supervision order will, at the very least, increase the tension between the parties which will inevitably affect the children. The trial presents the forum where the competing allegations, including those that relate to the need for continued supervision, can be fully explored based on evidence tested by cross-examination.

[43] As a result, while the respondent is to be highly commended for what appears to have been significant efforts on his part to keep his alcoholism under control, I am not prepared to vacate the supervision order pending trial.

[44] In summary, the applicant’s motion is dismissed, except for the requirement that the respondent provide the name of his employer within 10 days.

[45] The respondent’s motion is also dismissed.

[46] The parties both made submissions as to costs. Applying the factors set out in rule 24 of the Family Law Rules, and especially considering the lack of success of both parties in the substance of their motions, there will be no order as to costs.

Reid J.

Date: December 13, 2024