2016 ONSC 5733, 2016 ONSC 5733

CITATION : Mustapic v. Capin, 2016 ONSC 5733 COURT FILE NO.: FS-04-52373-01 DATE: 2016 09 15 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) KRESIMIR MUSTAPIC ) ) ) L. Belkin, Counsel for the Applicant ) Applicant )) ) - and - ) ) ) JORDRANKA KATHIE CAPIN ) ) )) S. Moss, Counsel for the Respondent ) Respondent ) ) ) ) HEARD: April 25, 2016 REASONS FOR JUDGMENT LEMAY J [ 1 ] This is a motion to change brought by the Applicant, Kresimir Mustapic (“Kresimir”). He is seeking various adjustments to the support that he was ordered to pay in the final Order of Mossip J., issued on July 4 th , 2011.

The Respondent, Jordranka Kathie Capin (“Kathie”) is also seeking some relief on this motion. [ 2 ] The issues on the motion to change were as follows:

a) What is the legal test on a motion to change?

b) What is the Applicant’s income for the purposes of calculating child support?

c) Is Ivana a child of the marriage? If not, when should child support and the related

section 7 expenses be terminated?

d) Should support have been paid for Jelena for the years 2012 to 2013? Should

section 7 expenses have been paid for Jelena for these years?

e) What

section 7 expenses should be payable, both historically and on a go-forward basis?

f) What child support should be paid on a go-forward basis?

g) What is the calculation of arrears of child support? [ 3 ] I will set out the background facts in this case, and then consider each issue in turn.

[ 4 ] To start, I should address one issue that came up in argument repeatedly. Both parties advanced arguments that sought to challenge the credibility of the other party. Given the history of this litigation ( see Mustapic v. Capin 2012 ONSC 3208 ), this is not surprising. However, in the course of argument I advised the parties that, if they required me to resolve credibility issues, then this matter should be sent on to trial. [ 5 ] Neither party wished to have a trial of the issues in this case. As a result, both parties agreed that I should determine the issues on the materials that had been presented. I have proceeded on that basis. Background Facts

a) Prior to the Consent Order of Mossip J. on July 4 th , 2011 [ 6 ] The parties lived in a common law relationship from December of 1990 until they separated in August of 2001. [ 7 ] The parties have three children. Ivana, born in November of 1991, is currently 24 years of age and is studying medicine in Ireland. Amanda Jelena, born in 1994, is a university student. Luka, born in October of 1998 is a high school student, who currently lives with the Applicant.

Luka may be going to university this fall, and my decision addresses that potential outcome. [ 8 ] There were various orders made by judges of this Court between 2007 and 2011. During that same time, the relationship between the Applicant and the children deteriorated significantly. Although the parties have provided me with a considerable history of the relationship between them since they separated, none of it is relevant to the proceedings before me.

The questions I must answer are financial, and therefore I have focused on the financial issues and financial evidence. [ 9 ] However, there is some history that is relevant to determining the financial issues. Consent Orders relating to financial issues were issued by Quigley J (on April 18 th , 2007) and Mossip J. (on July 4 th , 2011). It should be remembered that these are both consent Orders, and the parties drafted them.

Presumably, the parties knew what they intended when they drafted the Orders. [ 10 ] The Order of Quigley J. sets out some provisions relating to tuition and other expenses and with child support. The most relevant of these are as follows:

a) Kresimir shall pay child support for the children in accordance with the Child Support Guidelines and

Section 31 of the Family Law Act .

b) As set out in paragraph 18 of Quigley J.’s order, tuition and other expenses associated with post-secondary education shall be paid as follows: ½ by Kresimir and ½ by Kathie, subject to the child’s ability to contribute an amount up to 1/3 toward such expenses, provided the child does not forfeit any academic or other opportunity that would be beneficial to him or her.

c) Child support ceases when the child completes his or her first post-secondary degree, diploma, or certificate program.

d) Child support ceases when the child reaches 22 years of age. If the child continues to attend school past the age of 22 years up to the age of 23, the payor will pay child support directly to the child for that time. [ 11 ] I note that this was a consent Order, and it was clear that these issues were addressed on a final basis. There are some

interpretation questions that must be addressed in assessing the meaning of this Order. There are also some changes that result from subsequent orders. I will return to those issues below. [ 12 ] Then, there is the July 4 th , 2011 Order of Mossip J. The key provision of that Order is in the

preamble, where it states that “on consent, the child support commencing September 1 st , 2011 for the 3 children […] shall be as follows based on the husband’s income of $65,000.00 per year.” Again, it is clear that the child support provisions are a final Order. [ 13 ] Mossip J.’s Order also stated the following with respect to

Section 7 expenses: 2.) The sum of $977.00 per month for s. 7 expenses for the 3 children, being the husbands share based on paragraph 18 of Justice Quigley’s court order dated April 18, 2007 and the daughters contribution of 1/3 of the costs of tuition, including all necessary school fees, accommodation and books and the parents dividing the balance equally between them. The child Luka’s hockey expenses to be divided equally between the parties.

b) The Events Subsequent to Mossip J.’s July 4 th , 2011 Order. [ 14 ] One of the events in this case was a 12 day trial in May of 2012 over the issues of custody and access for Luka. This trial ended in a series of Orders that do not relate to the financial issues. As noted above, however, there is a great deal of animosity between these two parties. [ 15 ] In her Order, Mossip J. retained jurisdiction to deal with any issue relating to this family for a period of two years. That period ended in June of 2014. In late April of 2014, Kresimir brought a motion to reduce his child support payments.

He also sought a finding that, as of 2012, he had overpaid support for Jelena, and for a finding that he had overpaid support for Ivana. [ 16 ] This motion was brought as a regular motion. The Court concluded that this should have been brought as a motion to change.

Accordingly, on September 17 th , 2014, the Applicant filed a motion to change seeking substantially the same relief. [ 17 ] During this time period, in April of 2013, Ivana finished her undergraduate degree and was admitted to the School of Medicine at Limerick University in Ireland. She is expected to finish her medical degree in 2017, and has a line of credit that she is using to fund the very significant expenses associated with obtaining this degree. [ 18 ] Jelena originally started at Brock University in the fall of 2011, but had difficulties in school and stopped going to Brock in early 2012.

She was re-enrolled in Laurier University in September of 2012, but was on “deferred status” at that point. She returned to school on a part-time basis in January of 2013 and has returned to more full time schooling. She is hoping to graduate next spring. [ 19 ] The record is clear that Jelena has a mental health condition that prevented her attendance at school starting in early 2012. While Kresimir sought to challenge the existence of that condition, I see no basis for such a challenge.

While it is true that Jelena worked during 2012-2013, that does not prove that she was mentally able to attend at school, or was able to assume a full course load when she started at school. I accept that Jelena has diligently pursued her schooling, given her medical condition and circumstances. [ 20 ] I also note that Kathie did not share the information relating to Jelena with Kresimir, and it is clear that both Ivana and Jelena have limited contact with Kresimir. [ 21 ] Finally, hockey expenses for Luka are addressed in Mossip J.’s Order of July 4 th , 2011.

That Order states, as set out above, that “the child Luka’s hockey expenses to be divided equally between the parties.” Issue #1 - The Threshold on the Motion [ 22 ] This is a motion to change a final Order. As a result, the party seeking the change must meet the legal test to establish that change. [ 23 ] Each party that is seeking a change has the onus of proving that there has been a material change in circumstances. It should be noted that this couple was never married, so the statutory provisions that govern are set out in section 37(2) of the Family Law Act , which states:

(2) POWERS OF COURT: SPOUSE AND PARENT SUPPORT – In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependent’s or respondent’s circumstances or that evidence not available on the previous hearing has become available, the court may, (

a) discharge, vary or suspend a term of the order, prospectively or retroactively; (

b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (

c) make any other order under

section 34 that the court considers appropriate in the circumstances referred to in

section 33. [ 24 ] A material change in circumstances must be a change that was not foreseeable at the time that the Order was made. If I find that there has been a material change in circumstances, then I am required to embark on a fresh inquiry into what Order should be made. [ 25 ] These principles should be applied to each of the issues in this case where there is a final Order. Issue #2 - What is Kresimir’s Income? [ 26 ] It is useful to determine Kresimir’s income first, as the answer will assist in determining many of the remaining issues in this case. The outcome on this issue is driven, in significant part, by three factors:

a) Whether there has been a final Order of the Court relating to Kresimir’s income.

b) If so, whether there has been a material change in circumstances that would justify a review of Kresimir’s income.

c) Finally, and in any event, did Kresimir make concessions about his income in the course of argument? If so, what was the extent of those concessions?

d) Is There a Final Order? [ 27 ] Answering this question starts with a review of the original Orders. For the purposes of income, the critical Order is that of Mossip J. on July 4 th , 2011. On that date, Mossip J. (on consent) Ordered that certain payments be made on account of child support.

The Order clearly states that these payments were made on the basis of Kresimir’s income being $65,000.00 per year. [ 28 ] Kresimir has reported his income as $65,000.00 per year for quite a number of years, as he works for his own engineering company and is qualified as a structural engineer. [ 29 ] Kathie takes the position that Mossip J. did not make any findings about Kresimir’s income being $65,000.00 per year, and that

in her words, “his salary was never imputed by a court and it is not believable that a senior structural engineer with his own business and is [sic] a principal would only be making $65,000.00 a year.” [ 30 ] I reject Kathie’s position that the Court did not address the question of Kresimir’s income. An Order was made by Mossip J. in July of 2011, and it clearly sets out Kresimir’s income at $65,000.00. Further, that Order calculates child support and

section 7 expenses based on this income. Kathie’s argument that the Courts have not adjudicated Kresimir’s income is simply not supportable. [ 31 ] I acknowledge that this Order was on consent. However, it is an Order of the Court and it must be viewed as a final Order. In some circumstances, there may be more room for the Court to review a final Order made on consent. However, in this case I am of the view that Kathie must demonstrate a material change in circumstances for two reasons:

a) The parties had an agreement on the financial issues in this case, and the agreement was approved by the Court. While the Court must protect the interests of the children, the Court should be reluctant to look behind such agreements when they are reasonable on their face, especially when they are part of a larger settlement.

b) Kathie has not provided any explanation as to why she did not challenge Kresimir’s income in 2011 when this issue was before the Courts. Such an explanation, if proffered, might provide a rationale for looking behind the 2011 court Order. The absence of an explanation, on the other hand, makes me more reluctant to look behind the Order. [ 32 ] Given the foregoing, for me to consider imputing a higher income to Kresimir, there must be a material change in circumstances. I now turn to that question.

b) Is There a Material Change in Circumstances? [ 33 ] Kathie argues that there has been a material change in circumstances on the basis that this income is a fiction orchestrated by Kresimir and that he has underemployed himself in order to be spiteful to Kathie and the children. She argues that Kresimir’s income should be imputed at $100,000.00, and she believes that it is really $150,000.00 to $200,000.00 per year.

Kathie’s Affidavit also sets out her belief that Kresimir has been setting his salary artificially low since 2006. [ 34 ] In support of her position, she provides a number of documents setting out the median income for a structural engineer. These documents show that the median and average incomes for senior structural engineers are significantly higher than $65,000.00, in the range of $90,000.00. [ 35 ] Kresimir argues that his income has not changed, that he is not underemployed, and that he is working full time.

Kresimir also made arguments about the fact that the calculations of support and s. 7 expenses should take into account the fact that he is responsible for caring for his aging mother in Croatia. Given my conclusions on this motion, this argument is not relevant. As will be seen, I am by and large enforcing the parties’ previous agreement. Kresimir’s responsibility to care for his aging mother is not a reason to set aside the previous agreement. [ 36 ] I am of the view that there has not been a material change in circumstances in this case for the following reasons:

a) The fact that Kresimir owned his own business was well known to Kathie when the Order of Mossip J. was issued. Indeed, the documents that were filed in this case clearly indicate that Kresimir’s business existed back in 2010.

b) Kathie herself states that Kresimir has been hiding income since 2006. If that were the case, it was incumbent on Kathie to raise this issue in 2011 when this matter was previously before the Courts or to provide me with an explanation as to why she did not raise these issues at that time. Although circumstances change in family cases, there must be at least some level of finality. [ 37 ] I acknowledge that the evidence Kathie has filed suggests that Kresimir’s income is higher than $65,000.00.

However, Kathie has not demonstrated that anything has changed since this issue was the subject of a final Order in 2011. [ 38 ] Where there is no express variation provision in a final child support Order, Courts can read in a variation clause to allow support to be adjusted on the basis of changes in a party’s actual income. However, the case before me is distinguishable on the basis that Kresimir’s actual income (as recorded on Line 150 of his tax return) has not changed, and that Kathie seeks to have income imputed to Kresimir on the basis of facts that were known in 2011.

c) Concessions About Income [ 39 ] Although there has not been a material change in circumstances, Kresimir’s counsel conceded on the record that his income should be listed as $71,000.00 rather than $65,000.00. I accept that concession (although in reply I was advised that Kresimir was not happy about this concession), and I have made my calculations on that basis. [ 40 ] Part of the reason that I am accepting this concession is that it appears to me to be a reasonable concession.

In particular, if this case were considered at first instance, there is a strong argument that Kresimir should have at least $71,000.00 in income imputed to him. I view this concession as applying starting on April 1, 2014, which was the beginning of the month in which Kresimir brought his Motion to Change. Issue #3 - Is Ivana a Child of the Marriage?

a) Ivana’s Current Status [ 41 ] Ivana has completed her undergraduate degree, and is pursuing a medical degree, which will allow her to work as a doctor. She has secured a line of credit to finance this education, and Kathie is paying the interest on it. Kresimir does not appear to have been involved in obtaining this financing.

[42] In addition, Ivana is not pursuing opportunities for work that have been arranged by Kresimir. Instead, she has worked as atutor at the University of Limerick, but does not appear to have earned a great deal of money from that work. She has also been pursuingopportunities relating to her medical education. [43] It is expected that Ivana will obtain her medical degree early next year. I was not provided with any evidence on her prospectsfor employment when she completes that degree.

b) The Law and Its Application [44] On the question of child support, the starting point for the analysis on this issue is the Order that was made by Quigley J. It setsout two alternative termination dates for child support, being the date that the child turns 23, or the date that the child finishes their firstdegree. In my view, it is clear that support ceases on the earlier of these two dates. I reach that conclusion for two reasons:

a) There are a number of other provisions in Quigley J’s Order that could see support terminated as early as age 18, if the child didnot go to university and was otherwise independent.

b) The only way to consistently read these provisions is to read them as if support ends on the earlier of the date when the child turns23 or finishes their first degree. [45] I then turn to the question of university expenses. It is clear from the Order that the parties have agreed that child supportterminates after the completion of one degree.

Section 7 expenses are payable when support is payable. This is made clear by the ChildSupport Guidelines, where

section 7 starts with the words “In an order for the support of a child….”

Section 7 expenses travel with thesupport Order. [46] Since support ends under this agreement after one degree then, in my view, this agreement should be interpreted to end thepayment of tuition and other related expenses after one degree. I will address the quantum of the s. 7 obligation below. [47] Kathie has provided case-law to support her position that child support and

section 7 expenses should continue to be paid untilsuch time as Ivana completes her medical degree. In particular I have considered the decisions in W.P.N. v. B.J.N. ((2005) 2005 BCCA 7 , 36 B.C.L.R. (4th) 330 (C.A.)) and Leier v. Leier (2004 SKQB 46). [48] Both of these cases concerned the entitlement to ongoing child support and

section 7 expenses. Both cases acknowledge thatthere is a matrix of factors that must be considered in assessing whether a parent is obligated to pay for more than one university degree.These factors look at both the child’s circumstances, and the financial circumstances of the parents. [49] However, both of these cases involved the original determination of child support (and

section 7) payments. In this case, theparties had a previous agreement set out in a Court Order that the first degree only would be paid by the parents. In my view, thatagreement should be enforced in this case for the following reasons:

a) The onus to demonstrate dependency grows heavier the longer a child is in post-secondary education. In this particular case, thereis a great deal of evidence that Ivana has significant expenses. However, it is not clear that she remains a dependent. As noted above,she has been able to arrange financing to pay for this second degree.

b) Ivana already has a first degree, and was supported by her parents in obtaining this degree. It is quite possible that she isemployable with this degree.

c) Ivana has been able to arrange financing to pay for her second degree, although her mother has been paying the interest on thatcredit line.

d) The expectations of the parents and the child seeking support are clearly a relevant factor for the Court to consider. In this case,the expectation was that the parents would fund one degree. [50] In the result, the combination of the agreement between the parties and the factors set out above leads me to the conclusion thatKresimir is not obligated to pay any of the expenses related to Ivana’s medical degree.

c) Conclusions [51] In my view, Kresimir is not obligated to pay for any of the

section 7 expenses associated with Ivana’s medical degree, or to paysupport beyond April of 2013, when Ivana completed her first degree. [52] One final matter should be addressed. Kresimir provided information to the Court about voluntary payments that he had madedirectly to Ivana. I am of the view that these payments are not to be counted towards any arrears that Kresimir owes for any of thechildren for the following reasons:

a) All of the payments were made after the obligation to pay support for Ivana ended.

b) The payments were not made on account of child support and were not made on a regular basis.

c) There is no evidence that Kresimir told either Ivana or Kathie that these payments were on account of child support or

section 7obligations.

d) The payments only benefitted Ivana. It would be inappropriate to count them as a set-off against child support for either of theother two children. Issue #4 - Should Support Have Been Paid for Jelena for 2012 and 2013?

e) The Payment of Support [ 53 ] Kathie has conceded that support should not have been paid for Jelena for 2012. I accept this concession on the basis that Jelena was not in school during 2012, and earned an income on her own in that time period. [ 54 ] However, Kresimir argues that support should not be paid for Jelena in 2013 either (at least up to September of 2013), as she was only taking a partial course load and continuing to work. I reject this argument for the following reasons:

a) It is clear from the materials that Jelena was suffering from a mental health condition during this time period.

b) It is also clear from the materials that Laurier University was prepared to treat Jelena as having been enrolled full time even though she was taking a part-time course load on the basis of the fact that she has a disability. In light of that fact, I accept that she was a full-time student commencing in January of 2013 [ 55 ] Jelena is now 22 years old, having turned 22 in January of 2016. As a result, from February 1, 2016, support is payable directly to her until she turns 23 in January of 2017. The question then becomes what amount should be paid to Jelena on account of tuition and support.

b) The Quantum to Be Paid for Jelena [ 56 ] The amount of child support to be paid to Jelena is easily ascertainable. Except in 2012, when she was working and earning an income, Kresimir must pay support in the table amount for Jelena for the entire time that she lives at home with her mother.

The amount payable is the appropriate differential in the Child Support Guidelines between one child and two children, or two children and three, depending on whether Kresimir must also pay child support on account of Ivana in the relevant time period. [ 57 ] Once Jelena turned 22, the support (under the terms of the Order of Mossip J.) is to be paid directly to her. The amount is based on Kresimir’s income of $71,000.00 and is the difference between the table amount for one child and two children. It is $404.00 per month. [ 58 ] This brings me to the calculation of tuition and

section 7 expenses in this case. The hockey for Luka is a separate matter that I will address below. However, the remainder of Mossip J.’s Order is clear that Kresimir will pay the sum of $977.00 per month for

section 7 expenses for the three children, including the university expenses as set out in paragraph 18 of Quigley J.’s Order. [ 59 ] Kresimir argues that this paragraph means that he pays $100.00 for Luka for hockey expenses, and then pays $438.50 per month on account of each of Jelena and Ivana for university purposes. I will address his claim about hockey expenses below. [ 60 ] Kathie claims that Kresimir is responsible for paying one third of the actual tuition costs for each of Jelena and Ivana. [ 61 ] I accept Kresimir’s argument on this point for the following reasons:

a) It is clear from the Order of Mossip J. that the payment of $977.00 per month was to include post-secondary expenses for Jelena and Ivana, as paragraph 18 of the order of Quigley J. deals specifically and solely with post-secondary expenses.

b) The amount of $438.50 for each of Jelena and Ivana is a very high number for

section 7 expenses, especially when compared to the amount that was set aside for Luka. The most reasonable explanation for this disparity is the

interpretation proposed by Kresimir. [ 62 ] The amounts for child support and

section 7 expenses are payable to Kathie until the end of January of 2016, when Jelena is entitled to receive them directly. [ 63 ] Both the child support and the

section 7 payments for Jelena are to cease at the end of January, 2017. I reach this conclusion because, as set out above, the Order of Mossip J. is clear that child support terminates on the earlier of the date on which the child finishes their first degree and/or turns 23 years old. Jelena turns 23 in late January 2017. [ 64 ] Finally, there are the payments that have been made by Kresimir to Jelena directly. None of these payments were made after January 24 th , 2016 (Jelena’s 22 nd birthday). As a result, Kresimir was not entitled to pay support directly to Jelena.

In addition, he did not indicate to anyone that these payments were on account of support at the time that he made them. As a result, I find that Kresimir is not entitled to claim any of these payments as a set-off against his support obligations. Issue #5 - What

Section 7 Expenses Should Be Paid? [ 65 ] The dispute between the parties is over tuition for Ivana for medical school and Luka for hockey. I have addressed the claim for Ivana’s medical school above. [ 66 ] In terms of the claim for hockey expenses, Kresimir argues that he should not be responsible for half of these expenses. First, he argues that an amount of $100.00 per month for

section 7 expenses for Luka was agreed to between the parties and that this included the hockey expenses. Second, Kresimir claims that the hockey expenses, like all

section 7 expenses, must be reasonable given his income and the income of Kathie. [ 67 ] I reject both of Kresimir’s claims on this issue. The final Order of Mossip J. is quite clear. The hockey expenses are to be split equally. There is nothing in this Order that limits the quantum of these expenses, and there is nothing that limits them depending on when (or whether) Luka decides to play hockey. In addition, $100.00 per month for all of Luka’s

section 7 expenses, including hockey, seems to be quite low, especially given that he would have dental care and other expenses. [ 68 ] In other words, when the Order of Mossip J. is considered as a whole, it is clear that the hockey expenses are treated separately

from the other

section 7 expenses and are to be split equally. [ 69 ] Again, in this case, the parties reached an agreement. The Court should not be prepared to revisit the

section 7 expenses, and leave Kresimir’s income untouched. The various components of the agreement between the parties cannot be considered in isolation. As part of the bargain that the parties made, they agreed to split these expenses, and I see no reason to vary that agreement. The hockey expenses will be split equally. [ 70 ] It was not completely clear to me from the materials filed as to what the quantum of these expenses was. However, Kathie’s brief entitled “Calculation of Child Support Under Various Scenarios Owed by the Applicant Father” sets out amounts. The total amount claimed to be owing for

section 7 expenses for Luka by Kresimir is set out in the attached Appendix “A”. If Kresimir is challenging any of those calculations, he has fourteen (14) days from the release of these reasons to challenge those numbers by way of an Affidavit and a covering submission. Kathie shall not be required or permitted to reply to those submissions until and unless invited to do so by me. [ 71 ] In his factum, Kresimir also argued that, because Luka had not played hockey except for school hockey, that he had overpaid

section 7 expenses and was entitled to a refund. I also reject that argument. The Order of Mossip J. specifically sets out the obligations to pay for hockey expenses. There is no clause in that Order relieving Kresimir of the obligation to pay for those expenses if they are actually incurred, even if Luka decides not to play hockey for some period in the year, or only plays a particular type of hockey. Issue #6 - What Child Support Should be Paid Going Forward? [ 72 ] As discussed above, Ivana is no longer entitled to be paid child support or

section 7 expenses. Jelena is to receive those expenses directly on the basis that she is now over 22 years old. This leaves Luka. [ 73 ] Child support and

section 7 expenses should be paid for Luka on the same basis that they were paid for Jelena and Ivana, as follows:

a) The guideline amount for one child based on an income of $71,000.00 should be paid to Kathie for all months when Luka lives at home.

b) Kresimir is to pay a minimum of $438.50 on account of post-secondary expenses for Luka, at least on a temporary basis. [ 74 ] These conclusions assume that Luka is attending post-secondary education in the fall. If he is not, these issues can be revisited on that basis. Further, should there be any dispute over the payments of either child support or

section 7 expenses for Luka during the next eighteen months, I retain jurisdiction to address that dispute. Issue #7 - What are the Arrears of Child Support? [ 75 ] This is an arithmetical calculation that flows from the findings I have set out above. My calculations are set out in the attached “Appendix A”. Given the various findings, I conclude that Kresimir owes Kathie the sum of $13,932.00. In addition, he owes Jelena $5,890.00.

These numbers are subject to the points made in the following two paragraphs. [ 76 ] Both parties are free to challenge the arithmetical basis for those calculations by way of written submissions within fourteen (14) days of the date of the release of these reasons. Arithmetical basis means the calculation of the numbers. [ 77 ] For clarity, I will not be revisiting the factual findings and legal conclusions set out above and in the chart with one exception.

I am assuming, without finding, that the assertions in Kathie’s brief entitled “Calculation of Child Support Under Various Scenarios owed by the Applicant Father” about the amounts that Kresimir has paid are correct. If Kresimir wishes to challenge those assertions, he must do so with Affidavit evidence within fourteen days of the date of the release of these reasons. Kathie is neither required nor permitted to respond to these submissions until invited to do so by me. Disposition and Costs [ 78 ] Based on the foregoing reasons, I am making the following Orders:

a) For the purposes of calculating support, Kresimir’s income will be $65,000.00 until April 1, 2014, when it will be increased to $71,000.00.

b) Kresimir has no obligation to pay any support, including

section 7 expense, on account of Ivana, effective May 1, 2014.

c) Kresimir is not entitled to set any of the voluntary payments he made to either Jelena or Ivana off against the arrears under this Order.

d) Support for Jelena, including the payment of

section 7 expenses, is suspended for the year 2012.

e) Support for Jelena is payable directly to her for the period running from February 1, 2016 to February 1, 2017 in the amount of $404.00 per month for every month she lives with Kathie.

f) Section 7 expenses in the amount of $438.50 per month are to be paid directly to Jelena by Kresimir for the period running from February 1, 2016 to February 1, 2017.

g) Arrears of support is payable to Kathie in the amount of $13,932.50.

h) Arrears of support is payable to Jelena in the amount of $5,890.00.

i) If either party disputes the arithmetical calculations that I made to reach the numbers in paragraphs g and h, they may file written

submissions on that dispute within fourteen (14) days of the date of the release of these reasons. If no submissions are received, then those calculations are final, subject to paragraphs j and l of this Order.

j) If Kresimir disputes the amounts he has actually paid to Kathie, he is entitled to file an Affidavit outlining that dispute within fourteen (14) days of the date of the release of these reasons. If nothing is received, it is deemed that Kresimir has no dispute with the amounts he paid. Kathie may not reply to these submissions without leave of the Court.

k) Hockey expenses are to be shared equally between the parties for amounts actually paid. Those amounts, up to the end of 2015, are included in the arrears calculation in paragraph g.

l) If Kresimir disputes whether Kathie has incurred the hockey expenses, he may file an Affidavit outlining the basis for his dispute within fourteen (14) days of the date of the release of these reasons. If nothing is received, it is deemed that Kresimir has no dispute with the amounts that Kathie is claiming. Kathie may not reply to these submissions without leave of the Court.

m) All submissions made pursuant to this Order are to be filed with the Court office. [ 79 ] This brings me to the subject of costs. Success has been divided on this case. However, there are additional steps to be completed in this matter as set out above. Once the deadlines have all passed for those submissions, I will invite written submissions on costs that will address all issues on the motion, including the positions of the parties on the issues where further written submissions have been permitted. ___________________________ LEMAY J Released: September 15, 2016 CITATION : Mustapic v. Capin , 2016 ONSC 5733 COURT FILE NO.: FS-04-52373-01 DATE: 2016 09 15

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: KRESIMIR MUSTAPIC Applicant - and - JORDRANKA KATHIE CAPIN Respondent REASONS FOR JUDGMENT LEMAY J Released: September 15, 2016

SCHEDULE “A” 2012 Arrears Calculation

2 children for 4 months $966 x 4 1 child for 8 months $594 x 8 $3,864.00 4,752.00 $8,616.00 1/2 Luka’s Hockey 3,032.25 Ivana s. 7 $438.50 x 12 5,262.00 No support for Jelena 0 $100/month Luka 1,200.00 Total: $18,110.25 Father Paid: 21,600.00 1,800 x 12 Overpayment: $ 3,489.75 2013 Arrears Calculation 2 children for 8 months $966 x 8 1 child for 4 months $594 x 4 $7,728.00 2,376.00 $10,104.00 1/2 Luka’s Hockey - $6,304 3,152.00 s. 7 Jelena and Ivana $877.00 x 4 months $438.50 x 8 months 3,508.00 3,508.00 Luka’s other s. 7’s $100 x 12 1,200.00 Total: $21,472.00 Actual Paid: 16,200.00 Underpayment: $ 5,272.00 2014 Arrears Calculation

Income changes to $71,000.00 on April 1, 2014 1 child for 3 months $594 x 3 2 children for 4 months $1,051 x 4 1 child for 5 months $647 x 5 $1,782.00 4,204.00 3,235.00 $9,221.00 1/2 Luka’s Hockey - $5,757.69 2,878.85 Jelena’s s. 7 $438.50 x 12 5,262.00 Luka’s other s. 7 $100 x 12 1,200.00 Total: $18,561.85 Father Actual Paid: 12,828.00 Underpayment: $ 5,733.85 2015 Arrears Calculation 1 child for 4 months $647 x 4 2 children for 8 months $1,051 x 8 $2,588.00 8,408.00 $10,996.00 1/2 Luka’s Hockey - $4,686.85 2,343.43 Jelena’s s. 7 $438.50 x 12 5,262.00 Luka’s other s. 7 $100 x 12 1,200.00 Total: $19,801.43 Father Paid: 16,334.50 Underpayment: $ 3,466.93

2016 Arrears Calculation – Kathie (to August 31, 2016) 2 children for 1 month $1,051 x 1 $1,051.00 1 child 7 months $647 x 7 4,529.00 Jelena’s s. 7 1 month 437.50 Luka’s s. 7 $100 x 7 700.00 Total: $6,717.50 Father Paid: 3,768.00 Underpayment: $2,949.50 2016 Arrears Calculation – Jelena Lived at home for whole year $404.00 x 7 $2,828.00 s. 7 for 7 months $437.50 x 7 3,062.50 Owing: $5,890.50 No payments by father