Court File and Parties

COURT FILE NO.: 249/08

DATE: 20080923

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Ancelot Derisma v. Vyrose derisma

BEFORE: Justices Ferrier, Whalen & Bellamy

COUNSEL: Self for the appellant Self for the respondent

HEARD AT TORONTO: September 23, 2008

E N D O R S E M E N T

Ferrier, J.

[1] The parties were married in October 1981 and separated in about 2000. They have two children who were born in 1981 and 1984 respectively and who are no longer children of the marriage. An interim order for support was made in favour of the respondent for the support of the children.

[2] On February 2, 2005, the appellant moved before Goodman, J. for an order terminating the child support because both children, by then, had ceased to be children of the marriage. The appellant also sought reimbursement of child support claiming that he had continued to pay child support well beyond the point when the children no longer qualified. The termination order was granted on that date and the issue of reimbursement for overpayment of child support was left to be determined at the divorce hearing.

[3] On December 13, 2005, a divorce hearing proceeded before E. M. Macdonald, J., who granted the divorce. No equalization payment was ordered. The appellant's claim for reimbursement for overpayment of child support was granted and the respondent was ordered to pay the appellant $10,656.00. The respondent had presented no evidence to contradict the appellant's calculations of the overpayments.

[4] On February 27, 2006, the appellant appeared before Klowak, J. seeking directions on how to enforce the judgment. Justice Klowak's endorsement makes clear that the court could not give legal advice to one party against the other.

[5] In April 2006, the appellant brought a motion which was ultimately heard by Justice Macdonald on May 24, 2006. On that date, an order was made dividing a joint bank account equally between the parties. It appears that the issue of the overpayment of child support also resurfaced on May 24, 2006, and it appears this was because the appellant was attempting to enforce the judgment of December 13, 2005. The issue of overpayment was adjourned and came on for a hearing before Justice Macdonald on July 16, 2006.

[6] On July 16, 2006, Justice Macdonald heard evidence with respect to arrears regarding the overpayment of child support. Both parties gave evidence, as did their daughter. The respondent had made a cross-claim for moneys owed to her in the amount of $6,891.07. Justice Macdonald dismissed the overpayment claim and dismissed the cross-claim of the respondent, holding as follows:

The financial records are poor and beg many questions. The difficulty that is presented to the court is complicated by the reality that each of the parties has very conflicting versions of events relevant to the claims that they assert against each other.

As a result, I am dismissing both claims including the claim of Mr. Derisma to the overpayment of child support.

[7] The decision of December 13, 2005 made at the divorce hearing is a final judgment. Justice Macdonald was functus officio at the conclusion of that trial. She had already decided the matter and it could not be dealt with other than by an appeal. No appeal was taken from that judgment.

[8] The parties appear to have been self-represented at all the major appearances leading up to the July 16, 2006 hearing. On that day, it appears that neither party argued the question of jurisdiction. With due respect to Macdonald, J. we are of the view that she was without jurisdiction and that the subsequent order of July 16th cannot stand. Accordingly, the appeal is allowed and the order of Justice Macdonald of July 16, 2006 is set aside.

[9] It was brought to our attention on the hearing of this appeal that there are two outstanding orders for costs against the appellant, which he acknowledges are outstanding. These two orders total $1,300.00. The respondent is entitled to set off against the amount owing pursuant to the December 13, 2005 judgment ($10,656) the amount of $1,300 for costs previously awarded, leaving a net owing by the respondent to the appellant of $9,356.00.

[10] There will be no order as to costs.

Ferrier, J.

Whalen, J.

Bellamy J.

Date Heard: September 23, 2008

Date of Release: September 24, 2008