Court File and Parties
Citation: Horvat v. Kabitsis, 2016 ONSC 2057 Court File No.: FS-10-00357288 Date: 2016-03-30 Superior Court of Justice - Ontario
Re: Denes Karlo Horvat, Applicant And: Dionisia Kabitsis, Respondent
Before: Hood J.
Counsel: Andrew Sheremeta, for the Applicant Thomas White, for the Respondent
Heard: March 17, 2016
Endorsement
[1] On March 9, 2010 the applicant issued his application for divorce and corollary relief. On June 2, 2011 the applicant and respondent entered into a separation agreement. There are two children of the marriage – Alexandria and Andrew.
[2] At paragraph 4 of the agreement it provides that the applicant is to pay child support of $483 per child, subject to annual increase, until the children cease to reside full time with the respondent or they become 21 years old and cease to be in full time attendance at school. Paragraph 5 provides that both the applicant and respondent will contribute equally to the children’s extraordinary expenses.
[3] Before me the respondent moves to enforce the agreement and the applicant moves to change it. There is an issue as to my jurisdiction to do either. For the reasons that follow I grant a portion of the respondent’s motion and dismiss the applicant’s motion.
[4] A separation agreement under s. 54 of the Family Law Act (“Act”) is a domestic contract under s. 51 of the Act. S. 35 of the Act provides that a domestic contract may be filed with the Ontario Court of Justice or the Family Court of the Superior Court of Justice for the purposes of enforcement or variation. Neither the applicant or the respondent filed the agreement.
[5] In December, 2011 the respondent brought a motion returnable January 10, 2012 seeking enforcement of the agreement. She sought an order requiring the applicant to pay his share of s. 7 expenses for the two children, which had accrued since the agreement, and totalled $19,699.76.
[6] The applicant opposed paying arguing, that he was not consulted about the children or their expenses, lacked information about their schooling, the expenses were not valid and he did not have a relationship with the children.
[7] Justice Mesbur found the s. 7 expenses to be valid and ordered the applicant to pay half of the s. 7 expenses, namely $9,849.88 over time plus costs of $700.
[8] In April, 2013 the applicant brought a motion seeking “full financial disclosure” from the respondent for the years 2009 - 2013 in relation to the s. 7 expenses. He had not paid his share of the s. 7 expenses which had accrued since the last amount ordered to be paid. He again challenged the amounts incurred and the invoices provided. The respondent on the return of the motion once again sought an order that he comply with the agreement and pay his share of the expenses for 2012 - 2013 totalling $7,111.80. By this time Alexandria was attending York University and Andrew was attending Seneca College.
[9] On May 7, 2013 Justice Paisley ordered the applicant to pay $7,111.80 plus costs of $1,500. Justice Paisley found the expenses, including the cost for the monthly TTC passes to be valid s. 7 expenses.
[10] The applicant continued to not pay his s. 7 expenses. He also decided not to pay his agreed upon child support. In March, 2015 the respondent, yet again, was forced to bring another motion, this time seeking, among other things, $6,342.81 for s. 7 expenses for 2013 - 2014 and $8,161.94 for arrears of child support for 2014.
[11] In response, the applicant brought a motion to change under Rule 15 of the Family Law Rules asking the court, among other things, to terminate the agreement for child support for Alexandria effective April 30, 2014 and for Andrew effective December 31, 2014, and to terminate the s. 7 expenses in their entirety or to vary the agreed upon equal contribution towards them.
[12] By the time the motion was argued before me, the respondent was claiming arrears of child support for 2014 and 2015 amounting to $15,381.56 and the applicant’s share of s. 7 expenses from 2013 to the winter of 2016 totalling $7,857.15.
[13] The matter initially came before me on January 21, 2016. At that time I questioned whether I had jurisdiction to enforce the agreement, which the respondent wanted me to do, or to vary the agreement which the applicant wanted me to do. Even if one of the parties had filed the agreement under s. 35, which neither party had done, the jurisdiction to enforce or vary was arguably with another court. I adjourned the matter to March 17, 2016 to give the parties time to consider this issue of jurisdiction.
[14] The applicant in response chose to file another motion returnable March 17, 2016 in addition to his original motion to change. In it he sought much of the same relief as was sought in his initial motion to change, with some minor differences in wording. It would appear that this was done to avoid the jurisdictional issues associated with a Rule 15 motion and to try to give the applicant jurisdiction for the relief he was seeking under Rule 14.
[15] This jurisdictional issue was not raised by either Justice Mesbur or Justice Paisley nor argued before them on the two previous motions brought by the respondent seeking to enforce the agreement.
[16] Without the agreement being filed pursuant to s. 35 of the Family Law Act there is no jurisdiction for a judge of the Superior Court who is not a member of the Family Court to change the agreement under Rule 15, as the applicant initially sought in response to the respondent’s motion to enforce the agreement, nor under the new notice of motion under Rule 14. It is one thing to argue in response to a motion to enforce that he should not have to pay child support for Alexandria because she no longer comes within paragraph 4 of the agreement. It is something else to argue, on his own motion, that child support should be terminated or the share of the s. 7 expenses should no longer be equal, as was agreed, but should now be based upon current income. This is a change to the agreement. It is clear that I do not have the jurisdiction to do the latter.
[17] The respondent argues that I have jurisdiction to hear her motion to enforce the agreement under Rule 14 of the Family Law Rules, or alternatively Rule 49.09 of the Rules of Civil Procedure being read in conjunction with Rule 1(7) of the Family Law Rules as was done by the Court of Appeal in Linett v. Linett 2006 12956 (ON CA), [2006] O.J. No. 1622 at paras. 16 - 18.
[18] The respondent could readily enforce the agreement in the Ontario Court of Justice by filing the agreement as entitled to under s. 35. However, according to Linett at para. 13, she is not required to do so and may bring a motion to enforce in the Superior Court in an existing application. As the Court of Appeal stated, Rule 14 is not exhaustive of matters that may be brought by motion. So while what the respondent is seeking is not a temporary order, nor directions or a change in a temporary order, I am bound by the Court of Appeal to consider the respondent’s motion to enforce the agreement.
[19] I find the agreement to be clear.
[20] With respect to the motion to enforce the payment of child support, Alexandria is no longer in full time attendance at an educational institution and the fact that she still lives with the respondent does not matter. Accordingly, the applicant is no longer required to pay child support to the respondent for her. Based upon the affidavit evidence, Alexandria ceased being in full time attendance after August, 2014 when she completed her degree, so that while the applicant was required to pay child support for Alexandria up to and including August 1, 2014 there is no requirement to do so beyond that date.
[21] Andrew continues to be in full time attendance at Seneca College. The fact that it has taken him longer to complete his diploma than the typical three years is explained by his vision impairment. This evidence from the respondent I find to be unchallenged. Accordingly, the applicant continues to be responsible for Andrew’s child support and the applicant is entitled to enforce the agreement in this regard.
[22] As to the s. 7 expenses, I find the expenses for 2013 and 2014 as listed at Exhibit C of the respondent’s affidavit of January 16, 2016, with the exception of the passport renewal, to be proper s. 7 expenses. The orthodontic expense sought is, it is argued, the amount net of reimbursement by the respondent’s insurer. Upon being provided with documentation to establish this net expense the applicant is to pay 50% of same. The TTC passes have already been found by previous judges to be appropriate. I agree. They are still to be paid for despite there being no receipts for them.
[23] The 2015 and 2016 s. 7 expenses I also find to be appropriate and the applicant is to pay his 50% share of them.
[24] The applicant argues that he should not have to pay child support or s. 7 expenses for Andrew or should only have to pay a lesser amount because Andrew should be obtaining financial assistance from the Ontario Student Assistance Program (“OSAP”). He also argues that he is estranged from Andrew and because of this should pay nothing or a lesser amount in child support.
[25] The evidence filed by the applicant in support of his OSAP argument is completely unsatisfactory. I give the affidavit of Ms. Cummings, the assistant to the applicant’s counsel, no weight. She attaches documents obtained from the OSAP website and then reaches a conclusion based upon her interpretation of the facts and her reading of the documents that Andrew would qualify for a loan and grant. She is no expert on OSAP funding. If the applicant seriously wished to advance this argument it would have been incumbent upon him to obtain direct evidence from someone at OSAP or from a qualified expert who may have been able to reach a conclusion based upon assumed facts. The respondent has stated in her affidavit material that Andrew did apply to OSAP and was turned down for assistance. This evidence was unchallenged.
[26] Moreover, the agreement makes no mention of this. It does not require Andrew to make any contribution to his education expenses. The applicant is seeking to amend the agreement. As I have already held I have no jurisdiction to do so. Even if I did have jurisdiction there is no evidence in support of such an amendment.
[27] As to the estrangement argument I am not prepared to make any reduction based upon any alleged estrangement. Child support is to be paid pursuant to the agreement. There are no conditions attached to the requirement for payment of child support other than what is set out in paragraph 4(a) (i) through (iv). Again the applicant is seeking to amend the agreement.
[28] There is no evidence from the applicant regarding this alleged estrangement other than a brief mention in a 13 page, 52 paragraph affidavit, that Andrew has not signed a consent form allowing the applicant to obtain Andrew’s school records directly from Seneca College, and that he and Andrew do not communicate. In the agreement there is no obligation on Andrew to sign a consent. They may not communicate but there is no explanation as to why. Nor is there evidence as to the state of the communication at the time the agreement was executed and how it has now changed.
[29] I expect that the parties based upon my reasons will be able to calculate what is owed by the applicant. If not counsel for the parties may send me a joint letter setting out the position each takes on what is owed and I will issue a supplementary endorsement. I am not prepared to award any interest on the outstanding child support and s. 7 expenses, as there is no evidence of interest charges paid in support of the interest amount sought and in any event there is no provision in the agreement for interest that I can enforce.
[30] Presumptively the respondent is entitled to costs. While she did not obtain everything asked for she was for the most part successful. I understand there were offers to settle which perhaps may impact upon the costs being sought and any award. I would hope that the parties would be able to reach an agreement as to costs taking into account my reasons. I encourage the parties to try to do so.
[31] If unable to do so, the respondent may file brief written submissions, not to exceed two typed, double spaced pages, together with a costs outline and any necessary documents, such as offers to settle, by April 13, 2016. The applicant may file responding submissions, subject to the same directions by April 27, 2016. I understand that often the parties, following service, file their submissions as part of the continuing record. The court office does not always bring the submissions to the court’s attention as they are unaware that the court is waiting for these submissions. Accordingly, I direct the parties to not only file their respective costs submissions as part of the continuing record, but to also provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.
HOOD J.
Date: March 30, 2016