Court of Appeal for Ontario

Citation: Trebilcock v. Trebilcock, 2012 ONCA 452 Date: 2012-06-28 Docket: C51561

Before: Goudge, Juriansz and Ducharme JJ.A.

Between:

Linda Trebilcock Applicant (Respondent in appeal)

and

Brian Trebilcock Respondent (Appellant)

Counsel: Robert Martin, for the respondent (appellant) Geoffrey Carpenter, for the applicant (respondent in appeal)

Heard: June 14, 2012

On appeal from the order of Justice D.R. Gray of the Superior Court of Justice, dated December 17, 2009.

Endorsement

[1] At the outset of this appeal, counsel advised that the respondent had died and the appeal was subject to the automatic stay provided for by rule 11.01. We made an order that the proceeding could be continued by the respondent’s sister Mary Llewellyn as litigation administrator.

[2] This appeal is allowed in part.

[3] Counsel for the appellant argues that there was no basis in the record to support attributing an income of $75,000 per year to the appellant. That may well be. The record seems to indicate that the appellant was incapable of earning income and the motion judge remarked early in his reasons that it was highly unlikely that he would ever have any earned income. Counsel submits that the greatest income that could be attributed to the appellant is $30,000 per year given the investment income his capital assets would generate and his CPP income.

[4] However, we do not read the motion judge's award as based on an attribution of income. We note that the motion judge said he would attribute the income “if necessary" to support his determination that the appellant should pay monthly support of $1,098. It was not necessary. It seems to us that the judge exercised his discretion under s. 10(1) of the Child Support Guidelines to order an amount of support different than that set out in the tables. Here the mother of the children was disabled at the time of the order and was raising the children on social assistance. She had received no support from the appellant since 2001. The appellant while incapable of earning an income had inherited significant capital assets and had dissipated a portion of them. The children were reaching a post- secondary education age.

[5] The level of support and the order that it be paid as a lump sum were entirely reasonable in the unique circumstances of this case, particularly given the evidence of dissipation of assets by the appellant.

[6] The respondent concedes that the vesting order was not appropriate in this case. Given the motion judge’s finding that the value of the appellant’s house significantly exceeded the amount of the lump sum support order, the motion erred by ordering that the property would vest absolutely in the respondent if the lump sum support was not paid.

[7] The appeal of the order that lump sum child support in the amount of $150,000 be paid is dismissed.

[8] The vesting order is set aside and replaced by an order that the Mountainside Drive property in Burlington stand as security for the support order within the meaning of section 41(10)(e) of the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c 31.

[9] In view of the respondent's death, the order that the appellant pay lump sum child support in the amount of $150,000 to her solicitor is varied to order that Brian Trebilcock shall pay child support to the estate of Linda Trebilcock for the benefit of the two children Jacob and Megan in the amount of $150,000. The estate shall hold this amount in trust for Jacob Trebilcock and Megan Trebilcock to be paid to the person appointed as guardian of the children to meet the children’s needs.

[10] Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[11] The Director, Family Responsibility Office, shall hold any of the money received in respect of this support order pending the appointment of an executor to administer the estate of Linda Trebilcock as provided by section 56(2) of the Family Responsibility and Support Arrears Enforcement Act.

[12] In the event the ordered payment is not made within 30 days, this court orders that the Director, Family Responsibility Office may have the property seized and sold to satisfy any outstanding amount owing under the support order.

[13] Counsel have advised the court that no costs order is necessary.

“S.T. Goudge J.A.”

“R.G. Juriansz J.A.”

“Ducharme J.A.”