ONTARIO COURT OF JUSTICE

CITATION: Knocke v. Knocke, 2019 ONCJ 415

DATE: 2019 03 25

COURT FILE No.: Simcoe 79/14-01

BETWEEN:

Olga Knocke

Applicant

— AND —

Peter Knocke

Respondent

Before Justice A.D. Hilliard

Heard on March 21, 2019

Reasons for Judgment released on March 25, 2019

Justine Lyons............................................................................ counsel for the applicant(s)

Deborah Ditchfield............................................................... counsel for the respondent(s)

Hilliard J.:

Introduction:

[1] The Applicant has brought a motion requesting leave to amend her Response to Motion to Change to include a claim for contribution to extraordinary expenses for the children ongoing and retroactively back to 2015.

[2] The Respondent has brought a motion requesting that either the Applicant’s motion be dismissed or alternatively if the Applicant’s motion is granted, a finding that there is no genuine issue for trial on the issue of the proportionate sharing of s. 7 expenses and judgment to be rendered by the Court summarily. The Respondent’s Notice of Motion requests relief in the alternative event that the Court does not accede either to the request to dismiss the Applicant’s motion or the request for summary judgment, but as will become clear from the reasons and decision herein, it is not necessary to articulate the alternate relief requested.

[3] The two motions were argued together as the issues overlapped and were to a large extent intertwined.

Applicant’s Motion to Amend her Response to Motion to Change:

[4] Rules 11(3) of the Family Law Rules provides, “[o]n motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.”

[5] As counsel for the Respondent correctly pointed out in her submissions, the language in the Rule is mandatory rather than permissive.

[6] Rule 2(2) sets out the primary objective of the Family Law Rules, being “to enable the court to deal with cases justly.”

[7] Rule 2(3) goes on to elaborate on what dealing with cases justly means, specifying at subparagraph (a) “ensuring that the procedure is fair to all parties” and at subparagraph (c) dealing with the case in ways that are appropriate to its importance and complexity.”

[8] Counsel for the Applicant argues, in favour of her client’s motion, that the Respondent is in no way prejudiced by the amendment to the Applicant’s pleadings at this time because he has been on notice for two years that the issue of a retroactive claim for extraordinary expenses was being pursued, even if not properly plead.

[9] In support of her argument, the Applicant deposes in her affidavit in support of her motion that she was a self-represented litigant at the commencement of the proceedings and did not have the opportunity to consult with a lawyer prior to drafting her Response to Motion to Change.

[10] The Applicant further contends that there is no prejudice to the Respondent as he is aware of the Applicant’s proposed Amended Response to Motion to Change as a draft had previously been served on counsel for the Respondent and filed in the Trial Record.

[11] There is really no surprise or prejudice in this case, counsel for the Applicant argues, as the parties had been discussing and negotiating through their counsel in good faith the issue of extraordinary expenses for the past two years.

[12] The Applicant’s position is that the amendment is really just a technicality at this point and it would not be fair or just to preclude the Applicant from having her claim heard by the Court.

[13] Counsel for the Respondent submitted that there would be significant prejudice to the Respondent in the event that the amendment was allowed, which prejudice could not be compensated by costs or an adjournment.

[14] In argument, Ms Ditchfield for the Respondent indicates that it would not be “justice to Mr. Knocke” to allow the Applicant’s motion 32 months after the Applicant’s initial Response to Motion to Change was filed.

[15] Counsel for the Respondent submits that the motion materials themselves are deficient as the proposed Amended Response to Motion to Change is not attached to the motion materials. It is conceded, however, that a draft of that document was served on the Respondent and filed in the Trial Record.

[16] I was directed to the cases of Mio v Mio, [2014] O.J. No. 1647, and Moghimi v Dashti, 2016 ONSC 2116, on the issue of the analysis the Court is to undertake in determining whether an amendment to the pleadings should be allowed by the Court.

[17] Justice Pazaratz in the Mio case notes in his decision dismissing the Respondent’s motion requesting to amend her pleadings at paragraph 34, “[t]he reason why the Respondent waited so long may not matter. But the consequences of her delay matter a great deal.” (emphasis in the original)

[18] Justice Myers in the Moghimi case reviews the importance of pleadings in Family Law matters and finds as follows at paragraph 16 (in part):

Pleadings have important purposes in the just determination of a dispute. They provide notice to the other party of the case that she has to meet. There is no principle more important to the fairness of a dispute resolution process than that each side is entitled to fair notice. Once the parties know what the case is about, they make choices and take actions.

[19] I find that at least as far back as July 2018 the Respondent was aware that the Applicant was pursuing a claim for a contribution to the children’s extraordinary expenses, despite it not being specifically plead, as the endorsement of Justice K.A. Baker on July 23, 2018 reads in part, “remaining issues of s. 7 contribution and costs shall be adjourned to TMC on August 1, 2018 at 2:30 p.m.”

[20] I also find that the Respondent’s own materials filed on his motion for summary judgment clearly indicate to the Court that the issue of the Applicant’s claim for extraordinary expenses has been contemplated by the Respondent for a sufficient period of time to allow him to prepare wholesome materials on the issue of the merits of that claim.

Respondent’s motion for summary judgment:

[21] Rule 16 of the Family Law Rules sets out when a party can bring a motion for summary judgment.

[22] Summary judgment is available in any case except divorce pursuant to Rule 16(2).

[23] If the Court finds that there is no genuine issue for trial, Rule 16(6) provides that “the court shall make a final order accordingly.”

[24] In 2015, the Family Law Rules were amended to include broader fact finding powers for the Court on motions for summary judgment, including the powers set out at Rule 16(6.1):

In determining where there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[25] Rule 16 also provides for the Court to make a decision on a legal issue on a motion for summary judgment:

16(12) MOTION FOR SUMMARY DECISION ON LEGAL ISSUE – The Court may, on motion,

(a) Decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) Strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) Dismiss or suspend a case because,

(i) The court has no jurisdiction over it,

(ii) A party has no legal capacity to carry on the case,

(iii) There is another case going on between the same parties about the same matter, or

(iv) The case is a waste of time, a nuisance or an abuse of the court process.

[26] Counsel for the Respondent submits that it is clear that the Applicant’s claim for retroactive contribution to extraordinary expenses cannot succeed because the Applicant is unable to demonstrate a material change in circumstances or a basis for the Court to set aside the agreement of the parties that resulted in the Final Order of Justice K.A. Sherwood, dated August 26, 2014.

[27] Counsel for the Applicant argues that there is a material change in circumstances which is contemplated in the terms of the Order itself at paragraph 1, which provides for the amount of support “to be reviewed immediately if both party’s (sic) income changes, and the support payment will be recalculated and adjusted starting with the subsequent monthly payment by using the calculator at www.mysupportcalculator.ca.” The argument of mutual mistake was also put forward as an alternative position.

[28] I find that on the Applicant’s own evidence there is no demonstrated material change in circumstances that would justify the Court revisiting the issue of the Respondent’s contribution to the children’s extraordinary expenses.

[29] I do not accept and there is no evidence to support the argument of mutual mistake put forward by the Applicant as a legal basis for the Court to set aside the agreement of the parties.

[30] The Final Order of Justice Sherwood in 2014 provided for the Respondent to pay to the Applicant $1,172 USD monthly in child support. This amount was not related back to the Federal Child Support Guidelines or an annual income for the Respondent.

[31] Justice Sherwood’s Order also included a provision for the payment of the children’s orthodontic expenses by the Respondent.

[32] The Respondent’s income has not changed since 2014, remaining at $80,000 USD. He has continued to pay child support in US dollars since 2014.

[33] The extraordinary expenses of the children for which the Applicant is claiming contribution are largely unchanged since the date of separation in 2012. Counsel for the Applicant submits that some of the expenses are different as the children changed from participating in one extracurricular activity to another, but it is conceded that the children’s activities generally did not change in the years following the date of separation.

[34] The Applicant’s affidavit sworn March 18, 2019 at paragraph 35 states that the Respondent “paid for all of the children’s extraordinary expenses until 2014 when we structured the spousal support, child support and RESP contributions.” (my emphasis)

[35] What the Applicant’s evidence does not disclose is what support amount was being paid by the Respondent to the Applicant during the time period when the Respondent was paying for all of the children’s extraordinary expenses. As I indicated to counsel for the Applicant during the course of argument, it is extremely relevant what amount of support, if any, was being paid by the Respondent to the Applicant during this period of time as it directly impacts the Applicant’s argument that she was expecting the Respondent to continue paying for all of the children’s extraordinary expenses.

[36] The Applicant’s evidence on the issue of the material change in circumstances is internally inconsistent and contradictory.

[37] The Applicant deposes that she expected the Respondent to continue paying for the children’s extracurricular expenses despite the fact that there was no provision for the payment of those expenses in the Final Order and despite his ongoing refusal to pay for those expenses after the 2014 support arrangement was put into place.

[38] At paragraph 38 of the Applicant’s affidavit, she states that at the time of the signing of the agreement, “Peter was refusing to pay any of the children’s extracurricular unless it was in accordance with Section 7 guidelines.” In support of this statement she attaches as an exhibit to her affidavit an email from the Respondent wherein he writes “You need to educate yourself and stop with your abusive blackmail and extortion schemes…they will simply get you nowhere!!!!” The email that was attached was sent from the Respondent to the Applicant July 24, 2013, approximately one year before the Final Order was entered. The email also quotes from and refers to the Raftus decision of the Ontario Court of Appeal regarding how courts are to determine which expenses are “extraordinary” within the meaning of section 7 of the Child Support Guidelines.

[39] I find that the Applicant’s position that she continued to expect the Respondent to pay or contribute something towards the children’s extraordinary expenses after August 2014 defies logic and common sense, and the evidence presented on the motion.

[40] It is clear on the Applicant’s own evidence that the parties were discussing the issue of the children’s extracurricular expenses as far back as July 2013 and the ultimate financial arrangement that was structured and made into the Final Order of Justice Sherwood contemplates contribution to RESPs being made by the Respondent, as well as payment for orthodontic expenses. I do not accept that the issue of the children’s extracurricular expenses was forgotten or not contemplated by the arrangement that was reached between the parties.

[41] The argument of the Applicant that the review provision in paragraph 1 of Justice Sherwood’s Order amounts to a material change in circumstances also cannot succeed. Paragraph 1 of the Order states that the support “amount is to be reviewed immediately if both party’s (sic) income changes” (my emphasis). The Respondent’s income has not changed since the making of Justice Sherwood’s order and the wording of the order is clear. The review clause is only triggered upon both parties’ incomes changing.

[42] It is clear on the evidence and I find as a fact that the parties entered into a mutually beneficial financial arrangement that resulted in the Order of Justice Sherwood, dated August 26, 2014 which provided a comprehensive settlement of the issues of child and spousal support.

[43] Based upon these findings, there is no legal basis for the Applicant’s claim for retroactive contribution to extraordinary expenses and therefore no need for a trial on that issue.

Disposition of the motions:

[44] The Applicant’s motion to allow her to amend her Response to Motion to Change is granted.

[45] The Respondent’s motion for summary judgment of the Applicant’s claim for contribution to extraordinary expenses is granted and the Applicant’s claims are hereby dismissed.

Released: March 25, 2019

Signed: Justice A.D. Hilliard