SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: D13594/11
DATE: 2013/05/31
RE: SUSAN MARIE CURRY v. KEVIN CHRISTOPHER CURRY
BEFORE: THE HONOURABLE MR. JUSTICE KENT
COUNSEL:
P. Stillman, for the Applicant
B. Culp, for the Respondent
ENDORSEMENT
[1] The respondent seeks certain relief on a temporary basis, pending trial. The primary relief sought is that the order of Justice Glithero dated December 7, 2012, paragraph 1(iv) be continued until trial. The secondary relief sought by the respondent is that his guideline child support be adjusted so as to be based on an income of $44,850 retroactive to January 1, 2011 resulting in a monthly payment of $855 for the 3 children of his marriage.
[2] Apparently, the monthly amount in an earlier order was inserted incorrectly as a result of a mis-reading of the Child Support Guidelines. In addition, we now know the 2013 level of income enjoyed by the respondent.
[3] The relevant paragraph of the order of the Honourable Mr. Justice Glithero reads as follows:
“The extraordinary expenses claimed by the applicant shall not be enforced by the Family Responsibility Office (FRO) retro-active to January 22, 2008 with the FRO making the necessary adjustments...”.
[4] The material before Mr. Justice Glithero made it clear to him that, if not resolved, the amount(s) for extraordinary expenses was an issue that would need to be tried. Similarly the issue as to the correct apportionment of the extraordinary expenses between the payor and the recipient based on their respective incomes was then in December 2012, and currently remains, an issue in need of trial.
[5] Clearly, no meaningful order and no necessary reconstruction of the extraordinary expenses can occur based on the conflicting affidavit evidence before the court. Counsel for the applicant (respondent on this motion) suggests that the conflicting evidence amounts to insufficient evidence and that no relief should be granted on the basis of insufficient evidence. With respect, this court disagrees. Both respondent and applicant have placed considerable evidence before the court, some of which is most relevant on the issue of extraordinary expenses and apportionment thereof. The problem lies in the conflicting nature of that abundant evidence. The issues that arise when one attempts to determine an appropriate figure for extraordinary expenses and more particularly an appropriate apportionment of those expenses over the past few years and the accounting that flows therefrom are all issues for trial should the parties not be able to resolve them.
[6] For these reasons it is most appropriate that the relief granted by Mr. Justice Glithero on December 7, 2012 be continued until trial.
Order accordingly.
[7] The issue with respect to whether or not the obligation of the respondent to pay child support should be adjusted is a matter that lends itself to action by this court. While there may be some uncertainty as to the applicant’s income, there is now no uncertainty as to the respondent’s income. The relief that he seeks retro-active to 1 January 2011 should be granted. Based on his reported income, therefore, retro-active to 1 January 2011 until 31 December 2012 the child support ordered to be paid by the respondent is $855 per month for his 3 children based on his income of $44,850.
[8] This court, however, sees no reason why the child support obligation should not be adjusted now that the 2013 income of the respondent is known. According to the material at Tab 18 of the Continuing Record, the respondent’s regular pay, based on a 40 hour week is $932 gross. This makes his anticipated 2013 gross income $48,464 making his monthly obligation for the support of his 3 children the sum of $955 per month effective 1 January 2013.
Order accordingly.
Further Adjustments:
[9] There is a possibility that the respondent may not be able to continue working a 40 hour week. That and other factors such as the ultimate determination of extraordinary expenses both retro-active and on-going will, no doubt, require adjustments at trial.
[10] The nature of the triable issues in this case suggests that the parties would be well advised to engage in questioning session(s) before proceeding further. Accordingly, an order permitting the parties to conduct questioning is called for.
Order accordingly.
Costs:
[11] Counsel for the respondent submitted in his factum that this was a motion in which the court should consider assessing or awarding costs on a full indemnity basis due to bad faith having been demonstrated by the applicant. With respect, the conflicting material filed is not capable of supporting a finding of bad faith against the applicant. Further, success on this motion has been divided and it would seem, therefore, that there should be no order made as to costs. If counsel wish to submit otherwise, counsel for the moving party may provide written submissions within 7 days of the date of this endorsement such submissions to not exceed 3 pages in length. Within 7 days of receipt of same, the responding party on this motion may provide submissions in response, subject to the same limitation.
KENT, J.
DATE: 31 May 2013
COURT FILE NO.: D13594/11
DATE: 2013/05/31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CURRY v. CURRY
BEFORE: The Hon. Mr. Justice Kent
COUNSEL:
P. Stillman, for the Applicant
B. Culp, for the Respondent
ENDORSEMENT
KENT, J.
DATE: 31 May 2013