Court File and Parties

Court File No.: FS-10-70216-02 Date: 2018 12 17

Superior Court of Justice - Ontario

Re: DONALD SEALE v. NAFEEZA CAROLINE SEALE

Before: COROZA J.

Counsel: Payal Malhotra, counsel for Donald Seale Nafeeza Caroline Seale, self-represented

Heard: September 13, 2018

Endorsement (Summary Judgment)

[1] Donald Seale brings a motion for summary judgment dismissing all claims made by the Respondent, Ms. Seale.

[2] Donald and Nafeeza have three children: Joshua, Christine and Darryl.

[3] Darryl is now 30. According to Nafeeza, Darryl has autism and is living with her. Darryl currently receives Ontario Disability Support Program payments; however, she asserts that these payments are not sufficient to provide for his care. She claims that Donald should be responsible for providing support for Darryl, as he requires full-time care for the rest of his life.

[4] This matter has a lengthy history.

[5] Seppi J. made an order on July 21, 2011, that dealt with child support for Joshua and Christine, who were minors at the time. In that same order, Seppi J. dealt with issues surrounding the matrimonial home and the removal of a lien on the home. The lien had been placed on the home by the Ontario Legal Aid Plan because of legal fees incurred by Donald.

[6] Darryl was 23 at the time this order was made, and Seppi J. specifically directed that the issue of his support entitlement and quantum proceed to trial.

[7] Donald did not comply with the order of Seppi J. Eventually, the parties reached a settlement in October 2013. On October 21, 2013, the parties appeared before O'Connor J., and a final order was made on consent relating to the matrimonial home and access and child support for Joshua and Christine. Pursuant to this order, Donald was required to remove the lien on the matrimonial home that had been placed by Ontario Legal Aid.

[8] Para. 7 of O'Connor J.'s order states: “All remaining claims by each party against the other are dismissed”. On this motion, Donald argues that all claims, including any claims advanced on behalf of Donald, have been dealt with.

[9] Notwithstanding O’Connor J.’s order that he remove the lien, Donald delayed removing the lien on the matrimonial home, and the parties appeared in front of Ricchetti J. in February 2016 to deal with the lien. Ricchetti J. was troubled by the delay in the removal of the lien, and he granted a declaration that Nafeeza was the beneficial owner of the matrimonial home. By March 21, 2016, the parties appeared to have settled the matter before Ricchetti J. The first line of his endorsement states that “the matter is settled”.

[10] Donald's argument is straightforward. He argues that this court should dismiss Nafeeza's claim because the claim has already been formally adjudicated. Specifically, Donald argues that O'Connor J.'s order in 2013 is a final order and the matter was settled on a full and final basis.

[11] For her part, Nafeeza asserts that she did not realize that by settling this matter in 2013, she was waiving support for Darryl. She argues that her focus after receiving O'Connor J.'s order was to remove the lien from the house. She spent many years attempting to persuade Donald to comply with this order. She points out that this took many court appearances, and it was not until 2016 that she was successful in removing the lien. She had to raise three children, and her focus was on keeping the matrimonial home for them.

The Law

Family Law Rules, r. 16(6)

[12] Rule 16(6) of the Family Law Rules, O. Reg. 114/99, provides that the court may grant summary judgment if there is no genuine issue requiring a trial of a claim or defence.

[13] Rule 16(6.1) provides that the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be exercised only on trial:

(a) Weighing the evidence;

(b) Evaluating the credibility of the deponent; and

(c) Drawing any reasonable inference from the evidence.

Donald’s Position

[14] It seems to me that Donald is advancing a defence of res judicata. In other words, he is arguing that the issue of Darryl’s support has been litigated and a decision has been rendered. He points out that these matters were dealt with on consent.

Analysis

[15] In my view, Donald's request for summary judgment should be dismissed. I say this for the following reasons.

[16] First, Nafeeza claims that when she settled the matter in front of O'Connor J., she did not realize that she was waiving support for Darryl. I have some reservations regarding this assertion. A plain reading of O'Connor J.'s order indicates that all remaining claims are dismissed. At the time the order was made, support for Darryl was a remaining claim, because Seppi J. had directed that the matter proceed to trial.

[17] However, the credibility of her assertion has to be made after a careful assessment of her testimony and cross-examination of that testimony. On this limited record, I am not in a position to evaluate her credibility on this point.

[18] Furthermore, Nafeeza claims that she was focused solely on removing the lien from the matrimonial home and was not focused on attempting to enforce support for Darryl. In my view, Nafeeza’s assertion finds some support on this record, given the lengthy delay it took for Donald to deal with that matter. It will be for a trial judge, however, to assess whether there is merit to Nafeeza's claim that she did not realize she was waiving support for Darryl based on her singular focus on keeping the matrimonial home.

[19] Second, and more significantly, the right to child support belongs to the child, not the recipient parent. Even if both parents consent, the jurisprudence holds that a child's right to child support cannot be forever abandoned. A child may move in and out of entitlement to child support, and a child's entitlement to child support may continue past the age of majority if they are disabled, as in this case.

[20] A summary of the jurisprudence on this issue demonstrates that Nafeeza's assertion that Darryl has a right to support may indeed have some merit. I think the following principles have some applicability here.

[21] First, child support is the obligation of the parents. The duty to support the child is a duty owed to the child, not to the other parent: see Ontario (Director of Disability Support Program) v. Ansell, 2011 ONCA 309, 333 D.L.R. (4th) 489, at para. 21.

[22] Second, the right to child support is that of the child, not the custodial parent. The “payor's failure to give effect to this right voluntarily and the custodial parent's failure to enforce this right should not deprive the child of the support he or she is entitled to”: Walsh v. Walsh, 69 O.R. (3d) 577 (Ont. C.A.), at para. 25.

[23] Third, a child’s right to child support cannot be waived by the recipient parent: see D.B.S. v. S.R.G, 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 104.

[24] In conclusion, I do not agree with Donald’s submission that there is no genuine issue for trial. Donald has filed no authority to suggest that a parent can waive child support for a child forever.

[25] I also add the following observation. It appears that Donald’s position is that because a Dispute Resolution Officer (“DRO”) has come to the conclusion that Nafeeza's claim is without merit, this matter should not proceed to trial. As I stated to counsel in oral argument, I am not entirely clear why the opinion of a DRO would have any relevance on whether I should grant summary judgment. I have a record filed by both parties. The DRO did not. In any event, I do not believe that I am bound by the opinion of the DRO.

[26] For these reasons, I have determined that there is a genuine issue for trial. Donald's motion is dismissed.

[27] If the parties cannot agree to costs, I will receive costs submissions in writing within 15 days from the release of this endorsement. Nafeeza will serve and file her costs submissions first. Ten days after receiving her costs submissions, Donald may supplement his submissions that have already been filed (a bill of costs was filed on the date of the hearing). Both submissions are limited to three pages, double-spaced.

[28] I also direct that the parties schedule a settlement conference with the trial office within 30 days.

Coroza J. DATE: December 17, 2018