Byrne v. Simser, 2016 ONSC 2781

CITATION: Byrne v. Simser, 2016 ONSC 2781

COURT FILE NO.: FS-14-80571

DATE: 2016 04 26

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Leona Marie Byrne (formerly known as Leona Marie Simser),

Applicant

v.

Mark Simser,

Respondent

BEFORE: Bloom, J.

COUNSEL: Laughlin J. Campbell and Dilmini Bonas, counsel for the Applicant

Wendela M. Napier, Counsel for the Respondent

E N D O R S E M E N T

Bloom J.

I INTRODUCTION

1The Respondent moves for an order determining that he owes no support and is owed by the Applicant monies for overpayment of support. In a cross-motion the Applicant seeks an order that the Respondent pay arrears and interest. The lengthy history and absence of important documentation at this time make the determination of those issues difficult.

II PROCEDURAL HISTORY

2The parties were married in 1988. By an interim order dated April 8, 1999 Justice Speyer made provision for the payment by the Respondent to the Applicant of spousal support, child support for the two children of the parties, Brittany Simser and Benjamin Simser, and additional expenses.

3By Minutes of Settlement signed by the Applicant on October 29, 2001 and the Respondent on January 17, 2002, the parties settled issues that had been raised in a proceeding commenced by the Applicant. These minutes were never incorporated in an order.

4The parties agree that the minutes are to be treated as having the force of an order for the purpose of the cross-motions based either on their having agreed to treat them as such and/or the filing by the Applicant of the minutes with the Ontario Court of Justice under s. 35 of the Family Law Act.

5The Respondent’s motion has been brought as a motion to change Justice Speyer’s order. However, it and the Applicant’s cross-motion in substance raise together issues relating to the enforcement of the Minutes of Settlement. Neither party has contested my jurisdiction to address those issues, and I am content that I have jurisdiction to address them under FLR 1(2) and (8).

6The issues resolve themselves down to the following two broad questions which involve a number of discrete components: (1) what the Minutes of Settlement obliged the Respondent to pay; and (2) what he has paid in respect of those obligations. I intend to address those issues in that order.

III THE OBLIGATONS OF THE RESPONDENT UNDER THE MINUTES OF SETTLEMENT

7The Respondent was incarcerated for the period August 12, 1996 to September 30, 1998. The parties agree in the Minutes of Settlement that he owed $11,500.00 in child and spousal support for the pre-incarceration period.

8In the minutes the parties agreed that the Respondent owed “child and spousal support arrears of $78,000.00 during his period of incarceration” and fixed these arrears at $30,000.00 for child support. They also rescinded all the spousal support arrears.

9The minutes also addressed a sum of $10,000.00 for the Applicant’s legal fees which is not an issue in this matter.

10Further, under the minutes the Respondent owed child support of $21,000.00 for the period of November 2001 to December 2002 at $1500.00 per month. For the period of January 1, 2003 to May 31, 2006 I calculate the child support owed by the Respondent under the minutes at $61,500.00 at $1500.00 per month.

11For the period June 1, 2006 to June 30, 2008 the monthly amount of child support rose under the minutes to $1944.41 by virtue of the invocation by the minutes of the Federal Child Support Guidelines and the annual income of the Respondent in both Article 3 paragraph 1. and Article 18. That point is also supported by the letter of May 11, 2006 sent to the Respondent by the Applicant’s then lawyer. For the period June 1, 2006 to June 30, 2008 the sum owed is $48,610.25.

12In June of 2008, Benjamin graduated from high school; he did not attend a post-secondary educational institution. Accordingly, he no longer qualified under the minutes for child support. Brittany qualified for support, however, until February of 2011. The amount of child support owed, therefore, for the period July 1, 2008 to February 28, 2011 at $972.21 per month (being half of the $1944.41 to which reference has already been made above) was $31,110.72.

13Article 5 of the minutes provided that the parties would share equally the cost of the children’s extra-curricular activities such as sports. The Applicant gave evidence that the Respondent agreed in 2002 to pay $250.00 per month for this purpose. The Respondent denies that agreement. The Applicant supports her position by reference to the $206.00 ordered for this purpose by Justice Speyer on April 8, 1999. I accept the Applicant’s position based on the minutes and the logic of her reliance on Justice Speyer’s order. I calculate the sum owed for extra-curricular expenses as $20,000.00 based on $250.00 per month from November 2001 to June 2008, that is from the start date of child support accepted in argument by the parties to the end of Benjamin’s entitlement to child support. The Applicant claims only that sum to be owed for extra-curricular expenses.

14Article 5 b) of the minutes provided that the “parties shall proportionately share, pursuant to their respective incomes, the costs of the children’s post-secondary education which includes but is not limited to tuition fees, residence, travel costs, equipment, supplies, books, etc.” This provision had application on the facts only to Brittany. With the passage of time inevitably the relevant records are not available in detail. I can, however, make a reasonable calculation from the evidence provided to me, bearing in mind that the onus of proof on this issue of the appropriate quantum lies on the Applicant.

15The provision in question obliges the parties to share the expenses. Brittany is not contemplated as contributing to those sums. I, therefore, reject the Respondent’s argument that I should look at what Brittany’s contribution should have been in making my calculation. The parties have agreed, however, on the proportions to be borne by the Respondent for the years in question: (1) 2008- 69%; (2) 2009-58%; (3) 2010-60%; and (4) 2011-88%.

16One item of contest between the parties in this area was the cost of an automobile. I find that Brittany’s nursing school placements made an automobile and its associated maintenance costs a reasonable expense. I accept the evidence that the automobile supplied by the Respondent was in an inadequate state of repair necessitating the purchase of a new vehicle.

17I accept the following expenses as reasonable:

Rent

7,500.00

Uniforms, shoes, stethoscopes, etc.

1,000.00

Books

2,000.00

Background Checks

100.00

CPR Test

400.00

Mask Fit Test (1 time)

10.00

Parking @ school

1,750.00

Parking @ work school assignments

480.00

Car payment (52 months)

18,052.32

Car Insurance (52 months)

12,107.16

Gas

6,240.00

Cell Phone

2,600.00

License Plate

300.00

Mattress & Box Spring

600.00

Head & footboards

100.00

Dresser

125.00

Pens, Pencils, Binders, etc

100.00

Dishes & Cutlery & Pots & Pans

150.00

Moving Van

100.00

Tuition and Residence

31,527.79

85,242.27

18Applying the appropriate yearly proportions indicated above yields the Respondent’s obligation for the period 2008 to 2011 as $58,000.00.

19The Applicant seeks to reinstate $48,000.00 in child and spousal support arrears pursuant to paragraph 6. on page 5 of the minutes based on default in payment by the Respondent. She also seeks interest on various sums pursuant to the Courts of Justice Act.

20I reject both the claim for reinstated arrears and interest, under FLR 1(8). This order is necessary for a just determination of the matter, having regard to all of the circumstances, including the Applicant’s use of FRO to enforce the order of Justice Speyer when the minutes should have governed; the passage of time with its resultant effects on the evidence, especially documentary evidence, available to the parties; fairness including imposing the reinstated arrears and interest on the Respondent after substantial delay; and the manner in which the parties made ad hoc agreements rather than following the minutes.

IV THE PAYMENTS MADE BY THE RESPONDENT

21As a result of the inadequacy of the evidence, the onus of proof on the Respondent to establish his payments necessarily plays a role in my determination of the amounts he has paid. Not only is necessary documentary evidence not available to me; the affidavit evidence also does not lead me to any logical and persuasive result. Because he bears the burden of proof, this point would normally doom the Respondent’s argument on this issue.

22The Applicant admits, however, that the Respondent has paid a total of $234,783.89 in respect of his obligations. I accept that concession and will deduct the amount admitted from the sums owed by the Respondent as calculated above.

V. CONCLUSION

23The total owed by the Respondent as calculated above was $281,720.97. Deducting $234,783.89 credited to the Respondent, I find that the Respondent owes, therefore, $46,937.08 to the Applicant and order him to pay that amount under FLR 1(8).

24I will receive written submissions as to costs of no more than 3 pages, excluding a bill of costs. The Applicant is to serve and file her submissions within two weeks from release of these reasons. The Respondent is to serve and file his submissions within two weeks from service of the Applicant’s submissions.

Bloom, J.