CITATION: Mustapic v. Capin, 2016 ONSC 7334
COURT FILE NO.: FS-04-052373
DATE: 2016 11 23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kresimir Mustapic v. Jadranka Kathie Capin
BEFORE: LEMAY J
COUNSEL: L. Belkin, for the Applicant
S. Moss, for the Respondent
HEARD: Written Submissions, Post-Decision
ENDORSEMENT
[1] The purpose of this endorsement is to provide the parties with clarification and amendement to some calculations that I made in my original decision of September 15th, 2016 as well as to address the status of the youngest child, Luka.
[2] In my decision on September 15th, 2016, I provided the parties, and particularly the Applicant (“Kresimir”), the opportunity to provide me with additional submissions on the following issues:
a. Whether there was any dispute in the arithmetical calculations that I made in arriving at the arrears calculation set out in my decision.
b. Whether Kresimir had any dispute with the amounts listed in my decision as having been actually paid to the Respondent (“Kathie”) and, if so, what the basis for that dispute was.
c. Whether Kresimir disputed Kathie’s claim that she had incurred the expenses for hockey for the child, Luka.
[3] I received materials from Kresimir, and invited Kathie to respond to some of those submissions. I have now received Kathie’s response, and I will provide the parties with decisions on three issues:
a. Whether there are adjustments that are necessary in the calculation of arrears for 2014 and 2016.
b. Whether there should be any adjustments to the calculation of actual hockey expenses for Luka for any of the relevant periods.
c. Whether Luka should be considered a child of the marriage this year, while attending Blyth Academy for academic upgrading.
Adjustments to Arrears
[4] Kresimir is seeking an adjustment to the arrears calculation in my decision for both 2014 and 2016. I will deal with each year in turn.
[5] For 2016, Kresimir states that he has paid $10,052.00 up to the end of August of 2016. Kathie appears to accept that these payments were made, although she calculates the effect of these payments differently than Kresimir does. In my view, the calculation differences produce the following results:
a. Kresimir is entitled to a credit for the difference between the $10,052.00 he actually paid and the $3,768.00 that I credited him with paying.
b. This credit is applied first to the underpayment to Kathie of $2,949.50, and has the effect of eliminating that underpayment.
c. The remaining amount, being $3,334.50 is deducted from the arrears owing to Jelena. The arrears that Kresimir owes Jelena is reduced from $5,890.50 to $2,556.00, and this amount is to be paid directly.
d. Kathie is to pay Jelena the sum of $3,334.50 for university related expenses unless she has already done so for 2016.
[6] For the 2014 calendar year, Kresimir states that my calculation of arrears understates his payments by $2,138.00, and that the arrears should be reduced to $3,600.95. Kathie’s calculations are similar. As a result, the arrears payable by Kresimir for 2014 will be reduced to $3,600.95.
[7] Other than those adjustments, there are to be no changes to the arrears schedules attached to my September 15th, 2016 judgment.
Hockey Expenses
[8] I have already dealt with the question of whether Luka’s hockey expenses are part of the $100.00 in section 7 expenses that are being paid to him, or whether the hockey expenses were separate. I have already found that the hockey expenses were separate, and that there was no limit on them.
[9] Kresimir challenges the calculation of the hockey expenses as well as some specific expenses that are claimed. Kathie provides additional documentation to support the expenses that are claimed.
[10] When I review all of the documentation, I reach a number of conclusions. First, it is arguable that the amount of hockey expenses claimed by Kathie might actually understate the amount that was actually spent on Luka’s hockey. Second, a review of all of these expenses line by line would lead to endless disputes between the parties.
[11] As an example of both of these points, the expenses in the year 2014 seem to amount to at least $3,000.00 for team expenses, as well as at least another $3,000.00 in personal expenses. Kathie has only claimed half of approximately $5,700.00 from Kresimir.
[12] In the circumstances, having reviewed the expenses claimed by Kathie, I find that they have been reasonably incurred, and that there should, with one exception, be no adjustments to the hockey expenses in the arrears charts.
[13] The one exception is the refund cheque that Kathie had received for 2015 in the sum of $393.77. This cheque was not disclosed to Kresimir and should have been. Half of this amount, being $196.88 will be deducted from the arrears owing for 2015.
[14] Other than that, there will be no adjustments to the arrears owing on account of hockey expenses.
Luka’s Status This Year
[15] Kresimir stated, in his materials, that Luka obtained his secondary school diploma in the spring of 2016, and is not attending high school this year. As a result, Kresimir claims that child support should terminate. In his Affidavit of September 28th, 2016, Kresimir sets out a number of post-secondary education opportunities that he considered for Luka. It is his view that Luka should have adopted one of these routes, and not chosen to accept his mother’s view that he needed to upgrade his high school marks.
[16] Kathie has confirmed that Luka is attending Blyth Academy this year, and is upgrading numerous high school credits. As a result, she is of the view that support should continue.
[17] I accept Kathie’s position on this issue. Quigley J.’s Order of April 18th, 2007 sets out the circumstances in which child support will terminate. These include paragraph 18 (c) which states that support will not be payable if the child has reached 18 years of age and ceased “full time attendance at a recognized school, college or university”. Blyth academy is a recognized school, and Luka’s course load appears to be full time.
[18] As a result, Kresimir continues to be responsible for paying support for Luka as long as he attends Blyth Academy or is otherwise entitled to support under Quigley J.’s Order.
[19] If there is any claim that Kresimir is required to pay a portion of the Blyth Academy expenses, Kathie is to provide me with written submissions on this point within seven (7) days of the release of these reasons. Those submissions are to be filed with the Court office, with a copy e-mailed to Melanie Gunness.
[20] Kresimir will have seven (7) days to reply to Kathie’s submissions, again fililng his submissions with the Court office, and e-mailing a copy to Ms. Gunness.
Conclusion and Costs
[21] The following Orders flow from my decision above:
a. The arrears payable by Kresimir to Kathie for 2016 are reduced from the amount set out in my September 15th, 2016 decision to $0.
b. The arrears payable by Kresimir to Jelena for 2016 are reduced from the amount set out in my September 15th, 2016 decision to $2,556.00.
c. The arrears payable by Kresimir to Kathie for the 2014 calendar year are reduced from the amount set out in my September 15th, 2016 decision to $3,600.95.
d. There is to be a reduction in the arrears payable by Kresimir to Kathie on a global basis by $196.88 to account for a refund for hockey expenses.
e. Support payments for Luka are to continue as long as he remains enrolled at Blyth Academy or another school, college or university under the terms of the April 18th, 2007 order of Quigley J.
f. If Kathie is claiming that Kresimir is required to pay for any portion of the Blyth Academy expenses, she is to provide submissions by November 30th, 2016.
g. If Kresimir is challenging Kathie’s submissions as set out in paragraph f, he is to provide submissions by December 7th, 2016.
[22] In terms of costs submissions, I note that this matter is resolved except for the very small issue of who should pay for the Blyth Academy expenses for Luka. As a result, the parties are to provide their submissions on costs within fourteen (14) calendar days of the release of these reasons, being December 7th, 2016. These submissions are not to exceed two (2) double spaced pages exclusive of bills of cost, case law and offers to settle.
[23] Any reply submissions are due seven (7) calendar days later, being December 14th, 2016. Reply submissions are not to exceed one (1) double spaced page, exclusive of case law.
[24] All submissions are to be filed in original form with the Court office. However, an electronic copy of all submissions is to be provided to Melanie Gunness by e-mail at Melanie.gunness@ontario.ca.
LEMAY J
RELEASED: November 23rd, 2016
CITATION: Mustapic v. Capin, 2016 ONSC 7334
COURT FILE NO.: FS-04-052373
DATE: 2016 11 23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kresimir Mustapic v. Jadranka Kathie Capin
COUNSEL: L. Belkin, for the Applicant
S. Moss, for the Respondent
ENDORSEMENT
LEMAY J
DATE: November 23, 2016