Lee-Wing v. Cole, 2011 ONCJ 94

Brampton Registry No. 1705/04 DATE: 2011·II·17 CITATION: Lee-Wing v. Cole , 2011 ONCJ 94 ONTARIO COURT OF JUSTICE BETWEEN: LOIS MARSHA LEE-WING, Applicant, — AND — PETER COLE, Respondent. Before Justice Manjusha B. Pawagi Heard on 15 February 2011 Reasons for Judgment released on 17 February 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 7 . Family Law Rules , O. Reg. 114/99 [as amended], Form 14C. Phillip W. Sutherland .................................................................... counsel for the applicant mother Respondent father, Peter Cole .............................................................................. on his own behalf JUSTICE M.B. PAWAGI:— 1: NATURE OF THE CASE [ 1 ] This is the applicant mother’s motion for a final order based on minutes signed by the parties in August 2010 which resolved her motion to change (to increase child support) brought in August 2007.

The respondent father sought an adjournment to respond to the motion. His adjournment request was not granted as he had been served with the motion on 13 December 2010 and had had two months to respond. 2: HISTORY OF THE PROCEEDING [ 2 ] This proceeding commenced with the applicant mother’s bringing a motion to change the parties’ separation agreement dated 5 May 2000. The parties are the parents of a 13-year-old girl, Krista Cole (born on 11 October 1997). The parties lived together from 1993 to 2000.

The respondent father has two other children who resided with them, now 24 and 19 years old, from a prior relationship: • Andre Nathaniel Cole (born on 13 June 1986); and • Raejuane Nicholas Cole (born on 13 December 1991). [ 3 ] The separation agreement provided that the parties would have joint custody of their daughter Krista, with the primary residence with the applicant mother and with the respondent father paying child support of $375 per month based on his income at the

time of $55,000 per year. The separation agreement did not mention the father’s other two children. [ 4 ] In her motion to change, the applicant mother is seeking to increase child support on the grounds that the respondent father’s income has almost doubled since the parties entered into the separation agreement.

In his response, the respondent father is seeking custody of Krista and child support for all three children on the grounds that Krista wishes to live with him and that the applicant mother had acted as a parent to the two boys (whose mother lives in Jamaica and pays no child support). [ 5 ] On 24 June 2009, with the assistance of counsel from the Office of the Children’s Lawyer, the custody-and-access issue was resolved and the parties consented to a final order specifying access to the respondent father. [ 6 ] The matter was proceeding to trial on the issue of child support when counsel advised the court via confirmation Form 14C (under the Family Law Rules , O.

Reg. 114/99, as amended) on 26 August 2010 that the matter had been settled and that no parties would be attending for the trial management conference scheduled for that date. [ 7 ] The applicant mother then brought the within motion for a final order on the basis that the parties had signed minutes, counsel for the applicant mother had prepared a draft order, but counsel for the respondent father had not approved the draft order. On the date of the motion, counsel for the applicant mother advised the court he had been served with a notice of change in representation signed on 11 February 2011 indicating that Mr.

Cole would be representing himself, and provided a copy of it to the court (as it had not been filed). 3: THE FACTS [ 8 ] On 19 August 2010, the parties met without their counsel and subsequently came to a settlement agreement that they signed in the presence of a witness, Orrette Gray. The agreement covered child support and expenses under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended, for their daughter Krista (retroactive and ongoing) and provided that there would be no child support owing by the applicant mother for the respondent father’s two other children. [ 9 ] At the hearing of the motion, the respondent father advised that he was in agreement with all of the provisions regarding child support and

section 7 expenses for Krista, but that he was not agreeing that the applicant mother owed no child support for the two other children.

He also stated that he was thinking of seeking custody of Krista as she has been living with him the past two weeks but he is waiting to see whether this is a temporary change or a more permanent one. [ 10 ] Thus, the only issue to be decided at this motion is whether the provision in the settlement agreement that the applicant mother owes no child support for the respondent father’s two other children can be made into a final order. [ 11 ] On 26 August 2010, the matter was scheduled for a trial management conference.

Neither party nor their counsel attended as they had advised the court via confirmation Form 14C that the matter had settled. [ 12 ] On 27 August 2010, mother’s counsel wrote to father’s counsel providing him with a copy of the signed minutes and a draft order for approval. Mother’s counsel wrote follow-up letters on 9 and 21 September as he had received no response from father’s counsel. [ 13 ] On 13 October 2010, mother’s counsel provided father’s counsel with another draft order amended as father’s counsel had requested.

Mother’s counsel advised that, if he does not receive the approved order within two weeks, he will bring a motion and that he will be seeking costs. [ 14 ] The respondent father submits that he could not afford to keep his counsel and that he was denied legal aid. His 2009 income was $82,997. He acknowledges that he signed the agreement in August 2010, but states that he felt he had to sign or “they would garnish my wages.” 4: ANALYSIS [ 15 ] The respondent father is currently paying child support of $375 per month based on an income of $55,000.

In August 2010, he signed an agreement that child support would increase to $743 per month based on his 2009 income of $82,997 and that he would pay $8,500 in child support arrears, and that

section 7 expenses would be shared. The agreement also provided that the applicant mother would not have to pay child support for the respondent father’s other two children. [ 16 ] On 15 February 2011, the hearing date of the within motion, the respondent father submitted that he did sign the agreement and that he continues to agree to all of the provisions with the exception of the one releasing the applicant mother from paying child support for his two other children. [ 17 ] With respect to that provision however, he took no steps in six months to advise the applicant mother that he was no longer in agreement.

And he took no steps in the two months since he was served with the applicant mother’s motion to provide a response. In oral submissions, he provides no reasonable excuse for his failure to act. Although he is currently not represented, he was represented and his counsel was corresponding with counsel for the applicant mother for over two months after the agreement was signed. This was the counsel who had been representing him since the proceeding commenced in August 2007. [ 18 ] Applicant mother’s motion is granted. 5: ORDER

[ 19 ] Final order to go as per the draft order at exhibit “I” to the affidavit of the applicant mother, sworn on 9 November 2010. [ 20 ] Costs submissions may be made in writing. Applicant mother’s submissions due by 4 March 2011. Respondent father’s submissions due by 11 March 2011.