r v. John Andr, 2013 ONSC 2868

CITATION : Lisa Kathleen Cyr v. John André Cyr, 2013 ONSC 2868 COURT FILE NO.: 2524-2009 DATE: 2013-05-21 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Lisa Kathleen Cyr, Applicant AND John André Cyr, Respondent BEFORE: Justice M. Z. Charbonneau COUNSEL: Lisa Kathleen Cyr self-represented Earl Atnikov HEARD: May 8, 2013 ENDORSEMENT [ 1 ] John Cyr brings a motion to vary the final order of Justice Colin MacKinnon dated November 26, 2009. That order was made in an application brought by Lisa Kathleen Cyr as Applicant and John Cyr as Respondent. In that application, Lisa Kathleen Cyr only claimed for child support, including

Section 7 expenses and custody of the children. That application was finalized by the order of Justice MacKinnon. [ 2 ] On March 1 st , 2011 John Cyr, as applicant, had a new application issued in which he claimed a divorce, equalization of net family property and a reduction of his child support obligations in view of a reduced gross annual income. On July 15, 2011, the parties appeared to have reached a settlement as a result of a number of case conferences before Master MacLeod.

Unfortunately nothing was done to formalize the settlement and the application was dismissed by the clerk of the court as a result of neither party having taken any steps after service of a notice approaching dismissal dated March 1 st, 2012. [ 3 ] On September 12, 2012, John Cyr caused to be issued a motion to change the order of Justice MacKinnon. He is improperly referred to as the applicant and Lise Kathleen Cyr as the respondent. The motion had to be brought in the original application. I will revert to the style of cause of the original application.

Therefore John Cyr is the respondent and Lisa Kathleen Cyr the applicant. [ 4 ] In his motion to vary, the respondent made only one claim namely termination of child support for the two children, Kaitlin, 21 years old and Kyle, 19 years old, effective September 1 st , 2012. This would have terminated his child support obligations since no support was payable pursuant to the order for the youngest child Julia, 14 years old in view of the fact that she was spending an equal period of time with both her parents. It must be noted that Mr.

Cyr did not give any indication in his change information form (paragraph 16) on what change in circumstances he was relying in support of his claim for the termination of support. [ 5 ] Mrs. Cyr asked that the motion be dismissed with costs and she filed documentation to show that both Kaitlin and Kyle were in full time attendance at post-secondary institutions. [ 6 ] The respondent then filed what he purports to be an affidavit, but which simply is a bundle is of documents which purports to prove his allegations in support of his claim for variation.

It is impossible for the Court to understand the relevance and significance of the documents without a proper affidavit explaining them. [6] Sometime in April 2013, Mr. Cyr retained the services of counsel Earl A. Atnikov, who served a notice of motion returnable on May 8, 2013. This motion made new claims, namely: 1) Child support from the mother for Julia in the amount of $626.00 per month. 2) Termination of support for Kyle. 3) His support obligation for Kaitlin would only be for four months of the year. 4) A reimbursement from Mrs.

Cyr of overpayments he made since the order of November 26, 2009. [ 7 ] I pointed out to Mr. Atnikov that the notice of motion as it stood was procedurally defective for a number of reasons. Both parties then agreed to treat these new claims as an amendment of the original motion to vary and proceed immediately to a final hearing. [ 8 ] In his most recent affidavit in support of his motion to vary, Mr. Cyr alleges the following: 1) Julia is now living full time with him and therefore Mrs. Cyr should pay him support in accordance with the guidelines. 2) Kyle does not live with his mother anymore.

He lives full time with friends in Ottawa. Moreover, the respondent alleges that he is gainfully employed throughout the year.

3) In the case of Kaitlin, Mr. Cyr alleges that she only lives four months of the year with her mother. [ 9 ] Mrs. Cyr has responded by filing a huge amount of documents, many of which are irrelevant to the issues raised by the present motion to vary. Analysis [ 10 ] I find that I can only deal with the claim to vary the child support provisions of the order of Justice MacKinnon. It is the only subject matter of this motion. Notwithstanding the great efforts made by Master MacLeod to settle many other issues in 2011 contained in the context of Mr.

Cyr’s application, the apparent settlement was never formally implemented and the application on which it was based was dismissed. Neither party asks that the order of the registrar be vacated. [ 11 ] In so far as Julia, I am satisfied that the very unfortunate situation in which she is in has been caused by the parties unreasonable attitude towards each other. I find that the evidence does not establish a permanent change in circumstances. I find rather that it is more probable that not that the situation is temporary and will likely revert back to what it was within a short time. I therefore dismiss Mr.

Cyr’s claim for child support for Julia. [ 12 ] In so far as Kaitlin and Kyle, I am convinced that the guideline amount is not appropriate given the income they both earn, and the time spent away from home. I am not prepared however, to completely terminate child support for them as claimed by the father. I am satisfied on the evidence that the mother still provides considerable financial support to them. I fix the child support payable by Mr. Cyr for Kyle and Kaitlin at $800.00 per month effective September 1 st , 2012. [ 13 ] Mr.

Cyr is also ordered to pay 25% of the tuition fees and books for the school years 2011-2012 and 2012-2013 for both Kyle and Kaitlin. [ 14 ] Both parties will pay 50% of Julia’s extra curricula activities. I am not making any order for additional

Section 7 expenses as same are not specifically the subject of this motion to change and the material provided by Mrs. Cyr is too vague. [ 15 ] Mr.

Cyr will be entitled to re-imbursement of any amount of child support paid for Kyle and Kaitlin since September 1 st , 1011 in excess of the amount of $800.00 per month and tuition fees and books, if any. [ 16 ] For all of these reasons, order as follows: 1) The child support payable by the respondent father for Kyle and Kaitlin is reduced to $800.00 effective September 1 st , 2012. 2) There will continue to be no child support payable for Julia. 3) The respondent father will pay 25% of the tuition fees and books for Kyle and Kaitlin for the school years 2012 and 2013. 4) The parties shall ensure that all children are fully covered by their medical-dental plans and cooperate to ensure prompt re-imbursement of expenses incurred by the other for the children. 5) Each party will be responsible to pay 50% of all of Julia’s extra-curricular activities, including her dancing activities.

Justice M. Z. Charbonneau Date: May 21, 2013 CITATION : Lisa Kathleen Cyr v. John André Cyr

ONTARIO SUPERIOR COURT OF JUSTICE RE: Lisa Kathleen Cyr, Applicant AND John André Cyr, Respondent BEFORE: Justice M. Z. Charbonneau COUNSEL: Lisa Kathleen Cyr for herself Earl Atnikov ENDORSEMENT Justice M. Z. Charbonneau Released: May 21, 2013