Court File and Parties
Court File No. FS-13-0334
Dubinsky v Dubinsky, 2017 ONSC 2703
Ontario Superior Court of Justice
Endorsement
Applicant: MELISSA BERNADETTE DUBINSKY Counsel: william g. shanks
Respondent: DAVID WALLACE DUBINSKY Counsel: mary ann currie
Heard by Video: April 28, 2017
NADEAU J.
Endorsement
[1] The Applicant brought this motion, for numerous forms of relief, first made returnable on November 17, 2016. I heard argument, and made two Endorsements, on both of March 23, 2017 and April 12, 2017.
[2] It is obvious that the primary relief sought was payment of the mortgage on the former matrimonial home and the reimbursement of the shortfall in mortgage payments. The evidence is these amounts have been paid by the Respondent on or about April 12, 2017. It is conceded by the Respondent that this motion was necessary in order that these payments finally be made by the Respondent.
[3] The hearing of this motion then consisted of whether there are child support arrears, whether the Respondent should pay child support to the Applicant for Samuel, and whether I should order a Judicial sale or other security for the Applicant.
[4] There are clearly no child support arrears for Emma, now 22 years of age. The evidence presented to date is Samuel, who will be 26 in October, is in a Pharmacy programme at Waterloo University after having completed a four year degree at Lakehead University. The Waterloo University programme is a cooperative one in which the students have required work terms. Commencing January 2017, Samuel began his first work term of a twenty-four month schedule where he works for four months and goes to school for four months.
[5] The Applicant submits that Samuel, by reason of the default of the Respondent, paid his tuition by way of a student bank loan. The evidence presented on this motion suggests that his tuition to date has cost Samuel a total of $32,951.31. The Applicant seeks an Order fixing this amount as child support arrears with respect to Samuel. The Applicant also seeks that the Respondent pay child support to her for Samuel based on an estimate of the expenses of Samuel that the Respondent was ordered to pay. (emphasis added)
[6] The Applicant relies upon paragraphs 3, 18 and 19 of the Consent Order dated November 24, 2015, reproduced as follows:
If the Applicant requires it, she may register security, in a form and substance approved by the Respondent, on the camp property on West Loon Drive, for the amount of $125,000.00. Subject to the Respondent’s approval, the Applicant shall be responsible for the preparation, registration, and costs of the security. Forthwith upon payment of the mortgage on the Masters Street home, the Applicant shall remove and discharge the security registered against the camp property at her sole expense and shall provide to the Respondent the documentation in this regard.
The Respondent shall be responsible to ensure that all tuition, residence, and compulsory fees for both children are paid for their reasonable post-secondary education programmes.
For so long as each child remains in full time attendance in a reasonable programme of education, the Respondent shall pay for the vehicle insurance for each child and shall pay for the reasonable cell phone costs of each child. He shall also ensure that the children’s reasonable living expenses are met, taking into account a reasonable contribution from each child from their earnings or other resources. There shall be no further child support paid by either party.
[7] I was advised during the motion that the Applicant did not register security, in a form and substance approved by the Respondent, on the camp property. In any event, such security would have been discharged upon payment of the mortgage on the former matrimonial home on or about April 12, 2017. As I indicated during the hearing of this motion, although this paragraph 3 may have some relevance to the costs to enforce determination, I fail to understand how it assists the Applicant for the relief sought.
[8] With respect to paragraph 19, Counsel for the Applicant confirms there is no default by the Respondent in his obligation to pay for vehicle insurance and for the reasonable cell phone costs of each child. As well, the Respondent has ensured that the children’s reasonable living expenses are met, taking into account a reasonable contribution from each child’s resources.
[9] The Consent Order states: “There shall be no further child support paid by either party.”
[10] The Applicant relies upon paragraph 18, as ordered and agreed upon by these parties, to suggest that there are child support arrears and that the Respondent should now pay child support to her for Samuel. It is submitted that, unlike in paragraph 19, there is no contribution from each child required by the obligation of the Respondent in paragraph 18.
[11] However, the obligation of the Respondent in paragraph 19 is that he “shall pay” those expenses. By paragraph 18 the obligation of the Respondent is that he “shall be responsible to ensure that all tuition, residence, and compulsory fees for both children are paid for their reasonable post-secondary education programmes”. At issue here is Samuel’s second post-secondary education programme, and it is a cooperative one where he also works.
[12] Importantly, there is no direct evidence produced from Samuel for this motion to assist the Court in the determination the Applicant is seeking. The Court is left with competing and contradictory Affidavit evidence from these litigants, making it extremely difficult for the Court to ascertain credibility and the reliability of the facts necessary to determine the issues requested. It appears clear however that Samuel’s tuition, residence, and compulsory fees are being paid, and that neither parent has paid it.
[13] Therefore, I have not been persuaded by the Applicant that the Respondent must pay the $32,951.31, as requested by her, pursuant to the terms of the Consent Order dated November 24, 2015. Particularly since that Order specifically provides that there is no further child support payable, and considering the specific restrictive wording used in paragraph 18, these amounts are not child support arrears. Furthermore, a child support obligation to her is not born from these facts as presented by the Applicant.
[14] Since there are no child support arrears, and there is no child support obligation, I will obviously not order a Judicial sale or security. The further relief requested by the Applicant is therefore dismissed.
[15] If these litigants are unable to agree on an appropriate costs award for this motion, any party seeking costs shall within 15 days provide submissions (up to three pages) supported by a Bill of Costs. Any responding submissions (up to three pages) may be made within a further 15 days.
Released: May 5, 2017
The Honourable Mr. Justice David J. Nadeau