King v. Kitchen, 2011 ONCJ 738

Cambridge Registry No. 181/97-02 DATE: 2011·VI·08 CITATION: King v. Kitchen , 2011 ONCJ 738 ONTARIO COURT OF JUSTICE BETWEEN: WAYNE KING, Applicant — AND — CATHERINE KITCHEN, Respondent Before Justice Paddy A. Hardman Heard on 4 March 2011 Decision regarding Costs released on 8 June 2011 Rein Kao ................................................................................................................ for the applicant Michael B. Wannop ............................................................................................. for the respondent [ 1 ] JUSTICE P.A.

HARDMAN:— This is an application seeking costs by the respondent mother. The applicant father has filed responding material resisting any order of costs. BACKGROUND [ 2 ] Originally, there was a separation agreement between the parties dated March 26, 1997 that gave the respondent custody of their one child, the applicant access, and ordered the applicant to pay child support.

In 2006, there was an increase in child support on consent. [ 3 ] In September 2009, the applicant had concerns that the respondent’s partner had been charged with a violent offence and been residing with the respondent and the child contrary to his terms of release. The child told the applicant that he was not supposed to tell anyone. When the partner was arrested for breaching his recognizance, the child went to live with the applicant.

There was access by the respondent to the child. [ 4 ] The applicant immediately brought a motion to change the 1997 order seeking termination of child support effective October 1, 2009, custody, child support, share of special expenses, appointment of OCL and costs.

The respondent sought an order of joint custody, access at mutually agreed upon times, and costs. [ 5 ] The counsel representing the child confirmed her appointment with the parties by correspondence dated February 17, 2010. [ 6 ] There were dates related to disclosure of documents but perhaps one of the most significant dates is the completion of the OCL disclosure meeting May 28, 2010 prior to the court date of June 4, 2010.

Then on August 18, 2010, a settlement conference was held and the matter adjourned to October 22, 2010. [ 7 ] Following the discussion at the disclosure meeting and the settlement conference, the respondent served an Offer to Settle August 24, 2010 covering all issues. As a clinical investigator had been appointed through the OCL, a subsequent disclosure meeting was held December 2, 2010.

Following this second disclosure meeting, the applicant served his Offer December 8, 2010, but that offer did not contain a proposal regarding the financial issues. [ 8 ] On December 10, 2010, a final order was made on consent following the recommendations of the OCL regarding joint custody, alternating “week about” access and a number of terms. The remaining issues of past child support, ongoing support and costs were adjourned to March 4, 2011 for argument by way of motion. [ 9 ] Until the date of argument, the applicant was not prepared to discuss settlement of the child support issues.

Finally, on March 4, 2011, the day of argument, the applicant was prepared to settle in part based on the respondent’s offer.

THE POSITION OF THE RESPONDENT [ 10 ] The respondent takes the position that she was successful on all the matters before the court. While the applicant sought sole custody, she had asked for joint custody in her responding documentation, which was what was ordered on consent over a year later. Further, the respondent had been prepared to accept a week for the custody arrangement throughout the time of the application. While the applicant sought a termination of child support, the final order maintained a differential child support payable to the respondent.

The respondent was also successful in her claim of retroactive child support, a position resisted by the applicant. [ 11 ] The respondent’s offer complied with the expectations of Family Law Rule 18 and was bifurcated so that the applicant could accept one part of the offer and reject others, allowing for a narrowing of the issues for trial. However, the applicant did not accept any part of the offer served August 24, 2010.

Instead, four months later, on December 8, 2010, he finally served his own Offer to Settle, which contained terms similar to the custody/access provisions of the respondent’s offer, but without any offer regarding the child support. [ 12 ] Given her success, the respondent submits that the applicant’s failure to accept her offer means that pursuant to sub-rule 18(14) she is entitled to costs to the date the offer was served and full recovery of costs from that date. [ 13 ] The respondent also submits that the applicant’s behaviour was unreasonable: • He never made an offer on the financial issues • He never disclosed his 2008 disability income • He filed his documents a month late for the motion • He never produced his 2011 year-to-date paystubs despite a court order THE POSITION OF THE APPLICANT [ 14 ] The applicant in his response does not take issue with the fact that the respondent was successful.

However, in his submissions he noted the following: • The financial disclosure was provided by the respondent five weeks after the first return of the motion on December 11, 2009 • Counsel for the child was confirmed four weeks later • The respondent paid no child support for September 2009 to April 2010 when the child was living with the applicant • The court appearances June 2010 to July 2010 were related to organizing summer access with the respondent initially taking an unreasonable position • Counsel were also required to negotiate Christmas access in 2010 • The respondent responded promptly to the applicant’s Request to Admit [ 15 ] The respondent argued that the child, age 13, told him that he wanted to live with him, suggesting that it was that information that fuelled the litigation.

Also, he submitted that the law on the effect of split custody on support is not straight forward. Despite this, he pointed out that child support was resolved on consent the day of the motion. [ 16 ] The only submissions heard by the court were regarding retroactive support based on essentially agreed facts and took two hours. DECISION [ 17 ] On December 10, 2010, a final order was made on consent regarding joint custody. Also an interim order was made adjourning the issues of past child support, ongoing child support and costs to March 4, 2011 for argument.

While the rules contemplate costs at each stage of the proceedings, in this matter the argument regarding costs up to that point in the proceedings was adjourned on consent to the motion date. [ 18 ] The applicant appears to suggest that he commenced the litigation and sought custody as a result of the child’s views and preferences. While that may have been the case initially, it appeared that once the OCL was involved, a different position was being taken by the child through counsel.

The submissions of the respondent and the timing of her offer suggest that her position had been taken in response to information received from counsel for the child in the first disclosure meeting and at settlement conference. Further, the OCL, on behalf of the child, was in agreement with the final order on December 10, 2010. [ 19 ] Once a child has counsel, it is not up to a parent to take what turns out to be an unreasonable position because of the child’s views.

While sometimes there can be problems with ascertaining a child’s wishes given a child’s desire not to hurt a parent’s feelings, a parent must make decisions that are reasonable and in a child’s best interests. It is up to the OCL to identify and defend the child’s position in court. Therefore the allegation that it was the child’s wishes in this case cannot function as a shield against costs.

[20] While the respondent may have taken an unreasonable and ultimately unsuccessful position regarding the exchange atsummer access, it is not the issue that kept this matter in litigation. The applicant did not make any offer until December 2010. Theorder that day was like the proposal made by the respondent in August. This matter should have been resolved earlier. [21] While there are often creative arrangements regarding child support in joint custody arrangements, they are usually onconsent to address the specific needs of the parties.

In most cases where the child spends equal time with each parent, the calculation ismade of the guideline support each party would have to pay the other as child support were the child in the other’s care, and then thedifferential between the two support amounts is paid to the parent sharing the care of the child who has the lesser income. Frankly, thisis a fairly standard approach except where the parties on consent reach a different arrangement. This should have been settled earlier. [22] Certainly, a Court may exercise its discretion regarding costs given section 131(1) of the Courts of Justice Act.

However,the Court should not ignore the expectation of the Rules. [23] As submitted by the respondent, “a parent who allows litigation to continue to its fullest extent without making areasonable settlement offer or by failing to accept a reasonable offer should bear the costs consequences.” See Berdette v. Berdette(1988), (ON SC), 66 O.R. (2d) 410, 14 R.F.L. (3d) 398, 29 E.T.R. 303 (Ont. H.C.), affirmed at (1991), (ON CA), 3 O.R. (3d) 513, 47 O.A.C. 345, 81 D.L.R. (4th) 194, 33 R.F.L. (3d) 113, 41 E.T.R. 126, [1991] O.J. No. 788, 1991Cars​well​Ont 280 (Ont. C.A.).

While those courts were dealing with Civil Procedure Rule 49.10, the reasons are applicable in this case. That court noted that the purpose of the rule was to “penalize” litigants who take unreasonable positions in settlement negotiations. [24] This approach is echoed in the Family Rules. If a party makes a reasonable offer, then the other is at risk of costs if it isnot accepted. Clear expectations are set out about making offers and narrowing the issues for trial.

A party is rewarded with costs forproperly trying to settle and punished with costs for failing to do so. [25] The respondent has claimed total fees and taxes of $18,874.67. No issue was raised by the applicant regarding thespecifics of the account. [26] This total amount reflects counsel’s full hourly rate of $300 and the clerks at their respective full rates. In the accountsubmitted on behalf of the respondent, counsel has noted a possible partial indemnity rate of $240/hour. Further, he has set out partialindemnity rates for the two clerks involved. The disbursements total $414.11.

Further, there is HST applied to both fees anddisbursements. [27] Given sub-rules 18 and 24, it would appear that the respondent should be entitled to full recovery once she served herOffer in August 2010 as she was indeed successful. Given her success, she may also be entitled to at least partial recovery of costs up tothe Offer. With partial costs up to and including the offer in August 2010 and full recovery afterward, the total entitlement would be$12,417.40 plus $414.11 disbursements before taxes. [28] The Court does have some concern, however, about the information that generated the litigation.

While perhaps theapplicant should have spoken to the respondent to clarify the situation prior to seeking a change in custody, nevertheless the allegationthat the respondent assisted someone to breach a court order and allowed such a person into her home with a child present is concerning. Further, there is evidence that she attempted to involve the child in a cover-up.

These allegations are indeed very disturbing andcertainly warranted investigation and action by the applicant. [29] Further, some of the costs claimed do deal with the issue of summer access in which the applicant has complained thatthe respondent was initially unreasonable. [30] Taking that into consideration, as well as the applicant’s ongoing responsibility for child support, albeit at a reducedamount, and the care and support of the child half-time, the Court is prepared to order costs payable by the applicant to the respondent inthe amount of $8,000. [31] There have been no submissions made regarding payment of costs.

Therefore, I am ordering these costs to be paid in fullto the respondent within six months. Should the parties wish to agree to different arrangements, they may do so on consent prior tothe issuing of the order. ORDER [32] The applicant father is to pay costs of $8000 to the respondent mother within six months of this order. Released: 8 June 2011 Signed: “Justice Paddy A. Hardman”