ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: F1642/11
DATE: 2012-08-22

BETWEEN:

DEBORAH EUSEBI Applicant – and – MICHAEL EUSEBI Respondent

N. N. Nussbaum, for the Applicant.
G. J. Carpenter, for the Respondent.

HEARD: August 1, 2012

reasons for order

M c dERMID, J.:

1There are two motions before me:

1. A motion by the mother for an order that:

a. the father pay directly to his son, Nicholas, who was born November 19, 1989 and is, therefore, 22 years old, interim child support based on the father’s stated current income and the Guidelines in the sum of $1,396 per month.

b. the father produce his income tax returns and notices of assessment or re-assessment for the years 2003 to 2007 inclusive.

c. the father provide confirmation of the amounts he has contributed to the support and post-secondary school education of his present wife’s children.

2. A motion by the father for an order:

a. for security for costs in the sum of $15,000.

b. on an interim basis, terminating the child support payments.

c. in the alternative, on an interim basis that the child support payments be held in trust pending the resolution of this matter.

2On March 22, 1999, the mother obtained an order that the father pay child support for his two sons, Nicholas, born November 19, 1989 and Devin, born August 13, 1987, in the sum of $947, based on the father’s income of $71,694. The father has paid child support in the amount ordered and is not in arrears.

3However, in his Change Information Form, sworn October 6, 2011, the father deposes that his income for 2011 will be $168,000, that in 2010 it was $193,131 and in 2009 was $155,659. He deposes further that the table Guideline amount for two children on the basis of his annual income is $2,491 a month. His position is that he has "dramatically overpaid" child support.

4Nicholas's academic record is a key factor upon which the father relies to support his position that Nicholas is no longer a child of the marriage. The father’s version of Nicholas’s efforts at post secondary education are set out in paragraphs 19 to 30 of his affidavit at Tab 9A of the record. I note in particular paragraph 27.

5The father's position is also that the mother has obtained a Legal Aid certificate and is simply protracting the proceedings in the hope that it will be less expensive for him to settle than to litigate because he is paying his own legal expenses. Also, his position is that if the order he seeks is granted, he is able to pay retroactive support but if it is denied, the mother has no ability to reimburse him for any overpayment.

6Devin has achieved success in becoming independent and is no longer a child of the marriage.

7The issues are whether:

1. Nicholas remains a child of the marriage;

2. the applicant father is required to continue to pay child support for him and if so in what amount; and

3. child support for both children should be increased retroactively.

8Nicholas deposes that he finished high school in 2007, lives with his mother and has done so since the date of his parents' separation. He outlines his educational pursuits in paragraphs 4, 5, 17 to 24 and 27 of his affidavit.

9He attempts to justify his poor academic performance on the basis that he had to work so many hours while he was going to school to support himself that he did not have sufficient time to devote to his studies and that his father refused to provide additional support, even though he was asked to do so. Although Nicholas deposes that he is "confident" that he will be accepted back in the program in which he was last enrolled, there is no evidence that this is probable.

10In her affidavit, the mother deposes that since at least 2003 she has asked the father to provide financial information and increase child support and that he failed to do so. She deposes her income was $676.65 in 2008 and zero in 2009, 2010 and 2011 "working some cash jobs but mostly relying on financial assistance from family and friends".

11Both Nicholas and the mother depose that when they or Devin would ask the father to contribute to the expense of extracurricular activities he would say that the support he was paying should cover everything they needed. They claim that if they persisted in asking for support, the father would withdraw from them and would not exercise access.

12The only reference the mother makes in her affidavit about Nicholas's academic efforts is found in paragraph 13: “Additionally, contrary to the Respondent’s assertion at paragraph 15 of his affidavit, sworn July 24, 2012, Nicholas was under the age of 18, when he finished high school in June 2007, and he has remained, as best as he could be, enrolled in school on a full time basis since that time.”

13The academic records attached as exhibits to Nicholas’s affidavit do not support his mother’s claim that he has been “enrolled in school on a full time basis” since June, 2007. Moreover, it is questionable whether ‘as best he could” is an accurate description. In fact, he did not attend school at all during the 2008-2009 school year, during which time he worked. The father was not advised of this fact and continued to pay child support. Also, Nicholas deposes that he was forced to drop classes during the winter 2011 semester as a result of a motor vehicle accident. The last page of the material found at Tab 9A of the continuing record is a transcript of Nicholas’s marks at Fanshawe College provided by Ms. Nussbaum to Mr. Carpenter. For the “2012 Winter” term, it shows that Nicholas was enrolled in 5 courses in which he obtained three F grades, one C+ grade and one C grade. At the bottom of the transcript for this term is the notation: “Term Academic Standing: Required to Re-Apply.” In his affidavit, Nicholas deposes, “I was in school at Fanshawe College on a full-time basis in the Winter 2012, and will be enrolled on a full time basis for the upcoming Fall 20132 semester, and remain in need of the support of my father, the Respondent, Michael Eusebi.”

14However, there is no documentation to support his claim that he has reapplied or that he has been accepted as a student by Fanshawe College.

15Ms. Nussbaum’s position is that the test that should be applied on this motion is to determine whether the father has established a prima facie case and has come before the court with clean hands. She submits that the father's failure to disclose his income tax returns over a number of years as requested by the mother demonstrates his lack of clean hands and that he has not demonstrated any hardship as a result of continuing to make the support payments.

16She also submits that there is no legislative authority to vary a final order by way of an interim order, which is what the father is requesting. In fact, as noted in Hayes v. Hayes , ¹ there are two lines of authority: "One based on the principle that there is no expressed statutory authority to permit an interim order to be made to vary a final order pending a hearing to vary that final order. The second line of cases finds that such authority exists in cases of clear hardship."

17It is a well-settled principle that "an applicant for support bears the onus of proving that the child is still ‘a child of the marriage’.” ² However, on this motion for interim relief the onus is on the father to satisfy the court that the interim order he seeks should be granted.

18If I were to follow the line of authority that states that an interim order may not be made to vary a final order, then the father's motion must fail. If I were to follow the line of authority that states that an interim order may be made to vary a final order in circumstances of a prima facie case, clean hands and hardship, then the father's motion must still fail. There is nothing in the material that indicates that a continuation of the support payments will result in hardship to him. In fact, the alternate relief he has claimed as set forth in paragraph [1] 2. c. above is that he continue to make the payments but that they be held in trust. Moreover, his failure to produce his income tax returns might well be viewed as a failure to satisfy the requirement of having clean hands.

19Counsel advise that a trial management conference is fixed for September 13, 2012 and that trial time is available in the September 24 sittings. However, Mr. Carpenter indicates that he is not available during those sittings.

20The determination of whether a child in Nicholas's position remains "a child of the marriage" requires consideration of a number of factors. ³ This is a task best left for a full hearing.

21Accordingly, the father’s motion for an interim order to vary the final support order is dismissed.

22This may seem somewhat strange given my observations about Nicholas’s lacklustre academic performance and the absence of any evidence that he has applied and probably will be accepted to return to Fanshawe College. However, the support order that the father seeks to vary is premised on the fact that Nicholas was a child of the marriage. The issue remains whether he still enjoys that status. In the circumstances before me, it is not an issue that should be determined on an interim basis for the reasons noted above.

23With respect to the motion for security for costs, in my opinion, to grant this order would effectively deny Nicholas and his mother the ability to pursue the relief they are seeking. Accordingly, that motion is also dismissed.

24Similarly, the mother's motion for increased interim support is best determined at a full hearing and is also dismissed.

25If the father has not already done so, he shall produce his income tax returns and notices of assessment or re-assessment for the years 2003 to 2007 inclusive not later than five days prior to the trial management conference fixed for September 13, 2012.

26The mother's motion to have the father provide confirmation of the amounts he has contributed to the support and post-secondary school education of his present wife’s children is also dismissed. I do not see how this information is relevant to whether Nicholas remains "a child of the marriage".

27If counsel are unable to settle the issue of costs, Ms. Nussbaum shall deliver submissions to Mr. Carpenter within 15 days; Mr. Carpenter shall respond within 15 days and both counsel shall deliver their submissions, not to exceed five pages in length, to the court within 35 days of this date, after which I will make an order for costs on the basis of the material before me.

Footnotes

1. 12010 ONSC 3650 at para. [30] (S.C.J.)
2. 22007 MBCA 22 , [2007] M.J. No. 130 (Man. C.A.) at para. 26 .
3. 3See: Szitas v.Szitas [2010] O.J. No. 1261 at para. 37 (O.S.C.J.)