Court File and Parties

COURT FILE NO.: 05-FD-310778 FIS DATE: 20170418 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THEKLA TRYPIS Applicant

- and -

STEVEN TRYPIS Respondent

COUNSEL: Amanda Taerk, for the Applicant Brian Mikulinski, for the Respondent (Steven Trypis, self-represented)

Decision

D.L. Corbett J.:

[1] My endorsement of November 29, 2016 reads as follows:

The parties agree that Ms Trypis is entitled to payment of $7,120.33 on account of interest on the equalization payment and $6,836.52 on account of interest on arrears of child support. Mr Trypis agrees that he has some obligation for extraordinary expenses (claimed at $11,584.83 in para. 8(a) of Ms Trypis’ affidavit of November 24, 2016) – counsel will discuss these numbers and advise the court of the nature and extent of any disagreement after the break. Ms Trypis acknowledges that her claim for $8,804.89 pursuant to para. 187 of the final judgment of Mesbur J. was an error.

The parties have agreed that partial indemnity costs are $8,000 and full indemnity costs are $12,000. The court will deal with entitlement to costs after decision and consideration of any pertinent offers.

(After the break): In respect to s.67 expenses claimed at para. 8(a) of Ms Trypis’ affidavit: (i) Mr Trypis agrees to pay $4,882.80; (ii) he also agrees to pay forthcoming orthodontic expenses when incurred (not included in the total shown at para. 8(a) of Ms Trypis’ affidavit); (iii) he objects to university expenses because they do not take account of OSAP funding.

As I noted several times during oral argument, this is not a variation motion. Mr Trypis’ obligations are set out in the judgment of Mesbur J. While it is true that he has made child support payments over the years, it is also true that he has been consistently in default. Ms Trypis seeks security for child support and s.7 expenses. It is also clear that the parties need court-directed mechanics for Ms Trypis to claim s.7 expenses and to receive timely payment of them, while Mr Trypis needs the opportunity to voice any reasonable objections he may have. It also seems likely that there will be a motion to change the proportionate sharing of s.7 expenses in view of changes in the parties’ incomes over the years. The parties’ processes have been fraught and it is clear that the parties’ children have been drawn into these conflicts inappropriately, and clearly to their detriment. This can be extremely damaging – especially for teenagers – and every effort should be made by both parties to insulate their children from these conflicts.

It is clear that this is an appropriate case for security:

1. There is a long history, not of non-payment, but of payment default;
2. The default has been, at least to some extent, wilful – Mr Trypis has had an asset he could have sold, or against which he could have raised funds, to meet his obligations to pay on time;
3. Mr Trypis appears to have no other assets in Ontario;
4. Mr Trypis is not resident in Ontario (though there is some evidence that he is currently living in a house in the GTA apparently owned by his brother);
5. There is evidence of an extreme negative animus that has extended so far as to involve recruiting the children against their mother.

This is in the context of monthly support of about $1600 and anticipated university and orthodontic costs for three children – ordinary financial circumstances facing ordinary middle-class support payors.

This is also in the context that there is a large fund of money – nearly $450,000 – from which support can be ordered. In all of these circumstances I have no hesitation in ordering security – the real questions are the quantum of security and the form it should take. I do not expect the parties to agree on quantum, but they may be able to agree on the form of security and the way in which it should be mobilized to achieve the goals of providing timely payment while minimizing the practical cost to Mr Trypis of providing the security.

I shall reserve on the questions of quantum and form of security until December 8, 2016, to give the parties an opportunity to resolve the form of security. The parties are not to communicate with me further except to advise either:

(a) that they have been unable to agree on the form of security; or (b) to provide me with the terms of their agreement on the form of security.

In respect to the dispute over current university expenses, the issue is taking proper account of OSAP funds. Order to go that all documents related to OSAP funding (including the application and all supporting documents provided to OSAP and OSAP’s communications, including any basis given for providing an OSAP grant), be provided to both parties by December 2, 2016. Then, if the parties cannot agree on how expenses ought to be shared, that issue will be returned before me for decision or further directions (the total claim for contribution to these expenses is currently $6,702.03). The parties will advise me of their agreement on this issue or the need for a further appearance by December 8, 2016.

One order shall be made in respect to all issues after release of my forthcoming decision.

[2] The parties subsequently advised me as follows:

… Justice Corbett requested that we contact him on or before December 8, 2016 to advise him if we required a further appearance in front of him. We do not.

I can advise that my friend and I have resolved the issue of the form of the security and we have agreed that Mr. Mikulinski will keep whatever amount is ordered for security for support and contribution to section 7 expenses in his trust account to be paid out by him to my client or to FRO in accordance with the court Order. Mr. Trypis will be responsible for any costs associated with the administration of the security. Such administrative costs will not be paid from the security. In respect of any section 7 expenses, which include any medical, dental, orthodontic and optometrist and university expenses, upon the provision of a receipt or invoice for a particular expense, Mr. Mikulinski shall pay out his client’s proportionate share of the expense directly to the Applicant. All support payments shall be paid through FRO.

The parties have also resolved the issue regarding payment for university for this year. Mr. Trypis will be reimbursing my client 100% of the university fees and related section 7 expenses in the amount of $8703.93 from his share of the proceeds from the sale of the home.

[3] As I understand it, this leaves two issues for me to decide: quantum of security and costs of the motion.

[4] I agree with Ms Trypis that there has been a long history of default in payment obligations by Mr Trypis. I agree with Mr Trypis that he has made efforts over the years to pay down support arrears, even though he was not resident in Ontario and thus not easily subject to enforcement steps taken in Ontario by the Director of the Family Responsibility Office. I do not accept, however, that in light of the payment history I should conclude that Mr Trypis will honour his obligations to Ms Trypis.

[5] Mr Trypis has had an asset in Ontario, and it has been subject to Ms Trypis’ claims and thus has been preserved so that enforcement can be effected against it.

[6] The record is full of examples of highly inflammatory statements by Mr Trypis about Ms Trypis. Mr Trypis has sought to recruit the children against Ms Trypis because of her pursuit of payment of support and other amounts payable under the judgment of Mesbur J. It is clear that Mr Trypis has been telling the children that he would provide more for them but that he cannot because of the demands of their greedy mother – thus prompting highly inflammatory communications from the children to their mother.

[7] I conclude two things from these events. First, I conclude that Mr Trypis has a very strong negative animus against Ms Trypis, primarily arising, at this point, from her financial entitlements to support and other payments under the judgment of Mesbur J. I do not believe that Mr Trypis will pay support to Ms Trypis if there is not some way to force him to do so. The obvious way is by requiring security.

[8] In my view the security should be for an amount sufficient to cover 100% of the reasonably foreseeable future support obligations (including s.7 expenses). In view of the history of the matter, I fix this amount at $250,000.

[9] It follows that, after payment of the amounts agreed in this decision, after payment of the $250,000 in security to Mr Mikulinski’s trust account as security, and after payment of any costs I hereafter order payable by Mr Trypis, the net proceeds of sale that remain should be paid to Mr Trypis.

[10] If the parties have not agreed on the issue of costs then they may provide me with their brief written costs submissions, Ms Trypis by April 28, 2017 and Mr Trypis by May 12, 2017.

[11] If counsel agree on the form of the order they may send it to me for signature; if the form of the order is in dispute, this should be brought before me at 9:00 am any day I am sitting, no later than May 31, 2017.

D.L. Corbett J. Released: April 18, 2017