CITATION: Mustapic v. Capin, 2016 ONSC 7726
COURT FILE NO.: FS-04-052373
DATE: 2016 12 08
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] In my endorsement of November 23rd, 2016, I invited the parties to provide me with costs submissions. I also invited Kresimir to provide me with his submissions on the status of Luka, as he is attending Blyth Academy this year.
[2] In addition to the submissions I requested, I also received two production requests and a request to reconsider my decision for Luka’s hockey expenses from Kresimir. I also got a request from Kathie to reconsider my decision on hockey expenses.
[3] I will address each of those issues in the sections that follow.
[4] I note at the outset that counsel appear to have been involved in the costs submissions, and attended on the original motion, but they may have been less involved in the post-motion written submissions. However, in order to ensure that these matters are dealt with promptly, I am continuing to list counsel in the style of cause, and will be copying them on all endorsements. Both parties have also received a copy of this endorsement.
Hockey Expenses
[5] Kresimir states that I “mistakenly stated the total amount of Luka’s expenses claimed by the Respondent in her March 30th, 2016 Affidavit as the amount of hockey only expenses”. He also points to the fact that, in her Affidavit dated October 26th, 2016, Kathie introduced new evidence.
[6] As a result, Kresimir seeks production of “all bank, credit card and other statements for all the accounts which the Respondent used to pay Luka’s expenses and to which any refunds were deposited.” He then provides a list of those accounts.
[7] Kathie, in turn states that the amount of hockey expenses for 2016 for Luka was mistakenly not included in the claim that she made, and in the arrears that I calculated. She is asking for the arrears calculation to be adjusted to reflect this amount.
[8] I start from the observation that I made in paragraphs 4 and 5 of my September 15th, 2016 decision. Neither party wished to have a trial on this matter. They both wished to have it resolved by way of a motion. The actual motion was argued back in April of this year.
[9] Given that the parties had agreed to deal with the amounts of support arrears by way of a motion, any production requests should have been made prior to the motion being heard. Indeed, the motion was adjourned on at least one occasion to permit reorganization and clarification of the materials. Further, Kresimir was well aware of the type of document that Kathie was using to support her calculation of Luka’s hockey expenses when the motion was heard.
[10] In my view, this production request appears to be designed to allow Kresimir to obtain additional documents to challenge Kathie’s calculations. In addition, it will have the effect of delaying a final determination of the arrears in this case.
[11] This production request is untimely, should clearly have been made before oral argument of the motion, appears to be designed to permit re-litigation of a decision already made, and will unduly delay this matter. It is, therefore, dismissed.
[12] However, that is not the end of the matter. Both parties seek a recalculation of the amount of hockey expenses in this case. One alternative would be to decide that neither party is permitted to seek such a redetermination. However, both parties have a right to be heard.
[13] As a result, I will consider the calculation of hockey expenses, in the following way and on the following timetable:
a. In terms of the expenses that Kresimir is claiming are improperly calculated, he has seven (7) calendar days from today’s date to outline why there should be any adjustments to the arrears that I have calculated, making specific reference to the receipts before the Court. These submissions are to be submissions, and not an Affidavit, and are to be no longer than three pages in length.
b. In terms of the expenses that Kathie has claimed for 2016, Kresimir also has seven days to respond to those receipts with his position on whether these should be paid or not. Again, these submissions are to be submissions, and not an Affidavit, and are to be no longer than three pages in length.
c. Both sets of Kresimir’s submissions are to explain the amount he believes should be paid, the basis for that calculation, and the basis for disagreeing with any of the expenses that Kathie has claimed.
[14] Kathie is neither required nor permitted to reply to these submissions unless invited to do so by me.
Luka’s Attendance at Blyth Academy
[15] I start with paragraph 19 of my November 23rd, 2016 endorsement. Kathie has asked for reimbursement of the Blyth Academy expenses for Luka’s academic upgrading. I acknowledge that those receipts were attached to the November 30th, 2016 Affidavit that Kathie provided to the Court.
[16] Kresimir has filed, as part of his materials, a production request for the following information:
a. What was the date of Luka’s first class at Blyth Academy?
b. What courses has Luka taken at Blyth Academy to date?
c. What date did each course start and when is each course expected to finish?
d. How many times a week is Luka required to attend each course and from what time to what time?
e. How many more courses, and which ones, will Luka take in the school year 2016/2017?
f. Provide copies of the Respondent’s e-mail exchanges with Sarah Stillie of Blyth Academy.
[17] Based on his Affidavit materials, it is clear to me that Kresimir is arguing that Luka is not a full-time student, and that Kresimir should not be paying support on account of Luka. This is an issue that remains to be determined.
[18] As a result, I am directing Kathie to provide the production listed in paragraph 16 of this decision within seven (7) days of today’s date in the form of an Affidavit, along with any submissions she wishes to make about the receipts, the information and the question of whether Luka remains a full-time student within the meaning of Quigley J.’s Order.
[19] In addition to this production, I am also directing Kathie to provide a copy of Luka’s Grade 12 transcript from June of 2016.
[20] Kresimir will then have the ability to file materials outlining his position on why Luka is not a full time student and whether he should be required to pay any of the Blyth Academy expenses. Those submissions are due seven (7) days after the date on which Kresimir receives Kathie’s submissions.
[21] Kathie is neither required nor permitted to file reply submissions until and unless I request them.
Costs
[22] I am deferring my costs determination until the parties have made their submissions on the matters I have set out above.
[23] To be clear, this is not an invitation to the parties to provide me with additional submissions on costs. Such submissions will not be reviewed.
Conclusion
[24] I should address two matters of a more general nature. First, there is the payment of support for Ms. Capin and Jelena. This support is to be paid to the Family Responsibilty Office, and they are to enforce any arrears that are outstanding in accordance with my Orders.
[25] Second, as part of his submissions, Kresimir has asked for an additional Court appearance before me. I am denying that request at this stage for two reasons. First, given that the parties chose to deal with this material by way of a motion, written records are suitable to address the outstanding issues. Second, attempting to arrange Court time would unduly delay the final adjudication of this issue, and would consume valuable Court resources unnecessarily.
[26] If I determine that a further Court appearance is necessary once I review the material I have requested, I will advise the parties. Similarly, if either party is of the view that they require a Court appearance given the directions in this endorsement (and my previous ones), they may advise me as part of the submissions they are filing on the question of whether Luka remains a full-time student.
[27] The following Orders flow from my decision above:
a. In terms of the Hockey expenses for Luka that Kresimir is claiming are improperly calculated, he has seven (7) calendar days from today’s date to outline why there should be any adjustments to the arrears that I have calculated, making specific reference to the receipts before the Court. These submissions are to be submissions, and not an Affidavit, and are to be no longer than three pages in length.
b. In terms of the hockey expenses for Luka that Kathie has claimed for 2016, Kresimir also has seven days to respond to the receipts that Kathie filed with his position on whether these should be paid or not. Again, these submissions are to be submissions, and not an Affidavit, and are to be no longer than three pages in length.
c. The submissions in paragraphs a and b are to explain the amount that Kresimir believes should be paid on account of Hockey Expenses, the basis for his calculation, and the basis for disagreeing with any of the expenses that Kathie has claimed.
d. Kathie is not required nor permitted to respond to the submissions under paragraphs a and b until invited to do so.
e. Kathie is required to produce the following documentation within seven (7) calendar days of the release of these reasons:
i. What was the date of Luka’s first class at Blyth Academy?
ii. What courses has Luka taken at Blyth Academy to date?
iii. What date did each course start and when is each course expected to finish?
iv. How many times a week is Luka required to attend each course and from what time to what time?
v. How many more courses, and which ones, will Lika take in the school year 2016/2017?
vi. Provide copies of the Respondent’s e-mail exchanges with Sarah Stillie of Blyth Academy.
vii. A copy of Luka’s June 2012 report card.
f. The information required under paragraph (e) is to be provided by Kathie in an Affidavit form.
g. Kathie is to provide any submissions that she wishes to make as to whether Luka remains a full-time student within seven (7) calendar days of today’s date, and whether (and on what basis) Kresimir should pay the Blyth Academy expenses.
h. Kresimir will have seven (7) calendar days to file submissions in response to Kathie’s submissions in paragraph (g).
i. Kathie is neither required nor permitted to respond to the submissions in paragraph (h) unless invited to do so by me.
j. The submissions in paragraphs (g) and (h) are to address the question of whether either party believes that an in-person appearance is necessary to address the question of whether Luka remains a child of the marriage or the disposition of the costs of the Blyth Academy expenses.
k. The Arrears of Support for both Jelena and for Kathie are to be payable to and enforced by FRO. If FRO has any issues relating to enforcing support on behalf of Jelena, they may contact the trial office to arrange an appointment with me.
[28] I am also modifying paragraph 74 of my September 15th, 2016 endorsement. In that paragraph, I had indicated that I would maintain jurisdiction over issues relating to Luka for eighteen months. In light of the fact that both parties have sought to re-litigate issues that I thought were resolved, I am of the view that the issues relating to Luka’s support are so intertwined with the findings that I have already made that I should retain jurisdiction until Luka is no longer a child of the marriage. As a result, any motions relating to any changes in support for Luka must be brought before me.
[29] 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: December 8, 2016
CITATION: Mustapic v. Capin, 2016 ONSC 7726
COURT FILE NO.: FS-04-052373
DATE: 2016 12 08
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: December 8, 2016