



COURT OF APPEAL FOR ONTARIO

CITATION:
Trebilcock v. Trebilcock, 2012
    ONCA 452

DATE: 20120628

DOCKET: C51561

Goudge, Juriansz and Ducharme JJ.A.

BETWEEN

Linda Trebilcock

Applicant (Respondent in appeal)

and

Brian Trebilcock

Respondent (Appellant)

Robert Martin, for the respondent (appellant)

Geoffrey Carpenter, for the applicant (respondent in
    appeal)

Heard: June 14, 2012

On appeal from the order of Justice D.R. Gray of the Superior
    Court of Justice, dated December 17, 2009.

ENDORSEMENT

[1]

At the outset of this appeal, counsel advised that the respondent had died
    and the appeal was subject to the automatic stay provided for by rule 11.01. We
    made an order that the proceeding could be continued by the respondents sister
    Mary Llewellyn as litigation administrator.

[2]

This appeal is allowed in part.

[3]

Counsel for the appellant argues that there was no basis in the record
    to support attributing an income of $75,000 per year to the appellant. That may
    well be. The record seems to indicate that the appellant was incapable of
    earning income and the motion judge remarked early in his reasons that it was
    highly unlikely that he would ever have any earned income. Counsel submits that
    the greatest income that could be attributed to the appellant is $30,000 per
    year given the investment income his capital assets would generate and his CPP
    income.

[4]

However, we do not read the motion judge's award as based on an
    attribution of income.  We note that the motion judge said he would attribute
    the income if necessary" to support his determination that the appellant
    should pay monthly support of $1,098.  It was not necessary.  It seems to us
    that the judge exercised his discretion under s. 10(1) of the Child Support
    Guidelines to order an amount of support different than that set out in the
    tables. Here the mother of the children was disabled at the time of the order
    and was raising the children on social assistance. She had received no support
    from the appellant since 2001. The appellant while incapable of earning an
    income had inherited significant capital assets and had dissipated a portion of
    them.  The children were reaching a post- secondary education age.

[5]

The level of support and the order that it be paid as a lump sum were
    entirely reasonable in the unique circumstances of this case, particularly
    given the evidence of dissipation of assets by the appellant.

[6]

The respondent concedes that the vesting order was not appropriate in
    this case.  Given the motion judges finding that the value of the appellants
    house significantly exceeded the amount of the lump sum support order, the
    motion erred by ordering that the property would vest absolutely in the
    respondent if the lump sum support was not paid.

[7]

The appeal of the order that lump sum child support in the amount of
    $150,000 be paid is dismissed.

[8]

The vesting order is set aside and replaced by an order that the
    Mountainside Drive property in Burlington stand as security for the support
    order within the meaning of section 41(10)(e) of the
Family Responsibility and Support Arrears
    Enforcement Act
, 1996
,
SO 1996, c 31
.


[9]

In view of the respondent's death, the order that the appellant pay lump
    sum child support in the amount of $150,000 to her solicitor is varied to order
    that Brian Trebilcock shall pay child support to the estate of Linda Trebilcock
    for the benefit of the two children Jacob and Megan in the amount of $150,000. 
    The estate shall hold this amount in trust for Jacob Trebilcock and Megan
    Trebilcock to be paid to the person appointed as guardian of the children to
    meet the childrens needs.

[10]

Unless
    the order is withdrawn from the office of the Director, Family Responsibility
    Office, it shall be enforced by the Director, and amounts owing under the order
    shall be paid to the Director, who shall pay them to the person to whom they
    are owed.

[11]

The
    Director, Family Responsibility Office, shall hold any of the money received in
    respect of this support order pending the appointment of an executor to
    administer the estate of Linda Trebilcock as provided by section 56(2) of the
Family
    Responsibility and Support Arrears Enforcement Act.


[12]

In
    the event the ordered payment is not made within 30 days, this court orders
    that the Director, Family Responsibility Office may have the property seized
    and sold to satisfy any outstanding amount owing under the support order.

[13]

Counsel
    have advised the court that no costs order is necessary.

S.T. Goudge J.A.

R.G. Juriansz J.A.

Ducharme J.A.


