Tremblay v. Rosin, 2011 ONCA 100

CITATION: Tremblay v. Rosin, 2011 ONCA 100

DATE: 20110204

DOCKET: C51179

COURT OF APPEAL FOR ONTARIO

Sharpe, Blair and Rouleau JJ.A.

BETWEEN

Elizabeth Tremblay

Plaintiff (Appellant)

and

Urmas Rosin

Defendant (Respondent)

Elizabeth Tremblay, in person

Urmas Rosin, in person

Heard & released orally: February 1, 2011

On appeal from the judgment of Justice R.E. Mesbur of the Superior Court of Justice dated October 13, 2009.

ENDORSEMENT

[1] This appeal arises from a new trial ordered by this court on certain issues including equalization, child support payments, spousal support and outstanding debts in a divorce.

[2] At the first trial, the trial judge ordered a lump sum payment of $100,000 by the respondent for spousal support which was to be offset against $100,000 owed by the appellant to the respondent. The spousal support award of $100,000 was overturned by this court as there was a lack of evidence to support it and a new trial was ordered on the issues of equalization, child support and spousal support. In the meantime, this court stayed the $100,000 debt pending the new trial. A trial management conference ordered that the trial would proceed on those three issues, namely, child support, equalization and spousal support.

[3] In our view, the appellant has misinterpreted and misunderstood the effect of this court’s decision on the first appeal staying the $100,000 debt pending the new trial. That order was not intended to permanently stay the $100,000 debt or to release the appellant from her obligation to pay it, but merely to hold the debt in abeyance pending the new trial. The debt remained outstanding and the trial judge at the second trial properly set off equalization and support arrears against it.

[4] There was evidence to support the trial judge’s determination of the respondent’s income and her finding of fact is entitled to deference before this court. We see no basis to interfere and, therefore, there is no basis to alter the respondent’s child support obligation on the basis of a different income.

[5] We do agree, however, that the trial judge erred with respect to two items. The RBC Visa debt appears twice in the respondent’s net family property statement. First as $19,496 (the principal amount of the Visa debt) and then as $30,000 (the total amount of the Visa debt including interest). Accordingly, the respondent’s family property should be adjusted by $19,496 and the equalization owing to the appellant should be adjusted upward by half of $19,496 or $9,748.

[6] Second, the child support arrears should be increased by $3,848.16 as the FRO credited the respondent with that amount, which was subsequently reimbursed by the appellant as part of a settlement of criminal proceedings.

[7] Accordingly, the judgment under appeal is varied by increasing the equalization payment to be set off against the $100,000 promissory note to $36,617.57 and by increasing the child support arrears to be set off against that debt by $3,848.16. In all other respects, the appeal is dismissed.

“Robert J. Sharpe”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”