ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D563/07
DATE: 2014-04-07
BETWEEN:
David Mio
Applicant
– and –
Danielle Mio
Respondent
Jennifer Vanenberg
Counsel for the Applicant
James Brown
Counsel for the Respondent
HEARD: April 7, 2014
THE HONOURABLE MR. JUSTICE PAZARATZ
[1]. This is the Respondent mother’s last-minute motion to amend pleadings to claim retroactive child support in the amount of $19,719.44.
[2]. The parties have two children, Brent, age 14 and Camille, age 13.
[3]. The existing final order of Justice Mazza dated February 4, 2010 includes the following terms:
a. The parties have joint custody.
b. The children spend alternating weeks with each parent. Overall there is equal time sharing.
c. The Applicant pays the Respondent $500.00 per month child support based on his income of $70,000.00 and her attributed income of $30,000.00.
[4]. On October 12, 2012 the Applicant father commenced a motion to change timesharing and ongoing child support.
[5]. On November 14, 2012 the Respondent filed her Response to Motion to Change. It addressed the timesharing and ongoing child support issues raised by the Applicant.
[6]. There was no mention in the Respondent’s materials of any claim for retroactive child support.
[7]. Thereafter the file was intensively litigated. Among the steps:
a. On January 24, 2013 there was a Case Conference. The Office of the Children’s Lawyer (“OCL”) was asked to become involved and the matter was adjourned to the timelines.
b. On November 11, 2013 the OCL convened a disclosure meeting.
c. On November 28, 2013 the parties attended for a Settlement Conference.
[8]. At no point during any of those steps did the Respondent ever mention any claim for retroactive child support.
[9]. On December 10, 2013 Justice McLaren placed the matter on the sittings of March 13, 2014 – the current sittings – for a one-half day motion to be argued based on affidavit evidence. Deadlines were set for filing materials.
a. The Applicant was to serve and file any updating material by January 31, 2014. He complied with this deadline.
b. The Respondent was to serve and file her response by February 18, 2014. She did not comply with this deadline. She did not file her responding materials until March 17, 2014 – which was beyond the February 28, 2014 date the Applicant was allowed to file any reply.
c. The mother’s affidavit was also filed after the March 14, 2014 deadline for the OCL to file an affidavit of its social worker.
[10]. Notably, even in the Respondent mother’s late reply affidavit, she still made no mention of pursuing a retroactive child support claim.
[11]. On March 28, 2014 – after the March 24, 2014 Purge Court (at which any last minute issues could have been addressed) – the Respondent brought this motion requesting:
“That the pleadings of the Respondent shall be amended to add a claim for retroactive child support in the amount of $19,719.44 pursuant to subrule 11(3) of the Family Law Rules…”
[12]. The Applicant asks that the motion be dismissed. Counsel for the children takes no position.
[13]. Rule 11(3) states:
11(3) Amending Application or Answer with Court's Permission
On 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.
[14]. The Respondent’s position:
a. Rule 11(3) is mandatory.
b. The court “shall” grant permission to amend unless the disadvantage to the other party could not be compensated for by way of costs or an adjournment.
c. Here, there is no prejudice to the Applicant.
d. The calculation of retroactive child support is based upon the Applicant’s previous tax returns already filed.
e. There is no other evidence the Applicant would need to file on this issue.
f. The quantification/determination of retroactive support is a legal issue, not a factual issue. The Applicant’s counsel can rely on the materials already filed to address the legal issue.
g. The admittedly last minute request does not, in the Respondent’s view, treat the Applicant unfairly or take him by surprise.
h. In any event, the subject matter is child support, and the court should give priority to protecting the interests of children.
[15]. In answer to the obvious question – why did the Respondent wait until the very last minute to raise a claim that she could have raised in the fall of 2012 – her lawyer’s answer was simple and candid: “It was an oversight.”
[16]. Counsel for the Respondent referred to Stefureak v. Chambers (No. 3) 2005 16090, in which Quinn J. stated that it doesn’t matter if the amendment is prompted by a change in the case or merely an afterthought; and it doesn’t matter if the amendment comes as a surprise to the opposing party. The only relevant considerations are whether the amendment results in a disadvantage which cannot be offset by costs, or the granting of an adjournment, or both. I agree with that statement of the law. Even an “oversight” can be corrected, if the other elements of Rule 11(3) are met.
[17]. The Applicant’s position:
a. The Respondent is quite correct that the Applicant’s previous tax returns are in the court record. They were attached to the Financial Statement which the Applicant filed when he commenced this motion a year and a half ago.
b. The Respondent has had all of the financial information she currently relies on, from the very outset.
c. The Respondent never once raised the issue of retroactive child support. At all material times she had the information and opportunity to pursue this claim, had she been interested in doing so.
d. The claim was never addressed at the Case Conference or the Settlement Conference.
e. The claim was never addressed in any of the Respondent’s materials – including her late (and very recent) affidavit dated March 17, 2014.
f. The Applicant was unaware that this claim was being advanced when he prepared his various affidavit materials.
g. The Applicant has been deprived of an opportunity to present evidence on this very significant new topic.
h. The Applicant’s counsel advises that had she been advised retroactive child support was being claimed, she would have prepared different or additional materials, and she may have had to Question the Respondent.
i. Any consideration of retroactive child support would entail consideration of evidence and factual determinations. For example, the existing child support order was based on the Applicant’s actual income and the Respondent’s attributed income. A retroactive child support analysis would invite consideration of whether and how much income should be attributed to the Respondent for the years relating to the retroactive support claim.
j. The Applicant has invested considerable energy and money preparing and advancing his case based upon the issues as long-since identified by the parties. The motion is on the current sittings, ready to be called any day now. It is unfair to require the Applicant to suddenly have to prepare for an entirely new and unforeseen case, without the benefit of supporting evidence.
[18]. The Applicant’s counsel referred to Provenzano v. Thunder Bay (City) 2008 22147 (SCJ) where Smith J. stated at paragraph 7:
Rules exist to ensure that pleadings meet certain standards. Pleadings that are defective or inadequate lead to chaotic litigation which is often unnecessarily expensive and protracted.
Pleadings are important for several reasons:
• they serve to define the issues in dispute
• they give notice to the opposing party of the case that must be met
• they inform the court of the matters in issue
• they provide a record of the issues raised and prevent further litigation upon matters that have already been judicially determined
• they define the scope of discovery.
[19]. Rule 11(3) entails a two-step analysis:
a. Would the amendment disadvantage another party?
b. Could that disadvantage be compensated by costs, an adjournment, or both?
[20]. I find that the Applicant would be disadvantaged by the request for the amendment.
[21]. The Respondent seeks the amendment but does not seek an adjournment. The Respondent does not oppose an adjournment if requested by the Applicant. Clearly, if the amendment is granted, an adjournment would be necessary.
a. I disagree with the Respondent’s characterization that retroactive child support is simply a legal issue, and it’s simply a matter of doing mathematical calculations based on already filed tax returns.
b. Additional factual considerations would almost certainly arise.
c. If there is no adjournment and the motion is argued based on the current materials, the Applicant will be disadvantaged. He had no notice that the retroactivity issue would be before the court. He did not file any evidence on this topic, nor does his factum address this topic.
d. As well, because the issue had not been previously raised, the Applicant’s counsel was not able to address the issue of testing or responding to the significant retroactive support claim. Disclosure requests and perhaps Questioning might have been required. Additional affidavits from other deponents might also have been assembled.
e. Accordingly, if the amendment were to be granted and there is no adjournment, the Applicant would be fundamentally disadvantaged.
[22]. An adjournment – removing the matter from the current trial sittings -- would be necessary. But what would the adjournment entail?
[23]. At the very least, an adjournment would create a number of future steps:
a. The Respondent would have to file materials setting out the factual basis for the retroactive support claim.
b. The Applicant would have to file responding materials.
c. The Respondent might file reply materials.
d. Given the initial component of “attributed income” in the February 4, 2010 order, Applicant’s counsel might deem it necessary to schedule Questioning.
e. Transcripts might have to be ordered.
f. A new court date would have to be obtained for a long motion.
g. All of these additional steps would inevitably take time. The hearing of the motion could easily be delayed by another four to six months.
[24]. It must be remembered that the motion currently before the court relates primarily to children’s issues:
a. There is a long history of parental conflict and disagreement on this file.
b. Prior to the February 4, 2010 order being granted (based on Minutes of Settlement), the OCL had prepared a lengthy report pursuant to s.112 of the Courts of Justice Act.
c. The motion commenced by the Applicant on October 12, 2012 raised serious concerns about parenting and the children’s views and preferences.
d. These children’s issues have now been before the court for a year and a half. Conferences and a disclosure meeting have taken place.
e. The parties have filed comprehensive materials in relation to these parenting and children’s issues.
f. Significant time and energy was devoted by the OCL to provide meaningful and current information for the court.
g. The OCL clinical investigator filed a seven page affidavit dated March 14, 2014 setting out current information.
h. Both the social worker and the lawyer representing the children have completed their investigation. From the OCL’s perspective, the motion is ready to be decided.
i. Cases dealing with custody and timesharing issues need to be dealt with in an expedient manner, particularly where (as here) the children are old enough to be aware of the ongoing dispute.
j. An adjournment at this late stage will inevitably lead to delay. Unknown delay. Delay is not a good thing in parenting disputes. It’s not good for any of the parties. Above all, it’s not good for the children.
k. As well, depending on the extent of any delay, the OCL clinical investigator and/or lawyer may find it necessary to re-interview the children, to ensure their ability to present the court with current information whenever the new hearing date might arise.
l. Children should have their situations resolved as quickly as possible. They should have as little involvement with the court process as possible. Unnecessary “updating” interviews with social workers and lawyers should be avoided.
m. Delay in resolving this motion will create a disadvantage for the children; for the whole family.
[25]. As well, apart from future steps integral to an adjournment, what of past events which could have been more productive had the Respondent advanced her new claims at the very outset (when she was in possession of all necessary information)?
a. On January 24, 2013 the parties attended for a mandatory Case Conference. The Respondent never alerted anyone that retroactivity should be discussed.
b. Similarly, on November 28, 2013 there was no discussion of retroactivity at a Settlement Conference.
c. The rules require that the issue the Respondent now wishes to raise in her amendment must be addressed through the case conference process.
d. Case management is mandatory because it is a proven method of promoting resolution or at least narrowing issues in a timely, cost-effective manner.
e. Is it fair that the Respondent’s inattentiveness deprives the Applicant of the benefit of having the retroactive claim case managed?
f. Is it fair that the Applicant has been deprived of the efficiency of having all issues case managed at the same time?
g. Presumably, as a term of any adjournment, we could also schedule a further case conference or settlement conference on this new issue. But that would entail even more duplicated work; more expense; and even more delay.
[26]. Accordingly, while in some ways an inevitable adjournment would provide some compensation for the Applicant, in many ways an adjournment would simply create more disadvantage.
[27]. Notably, while the Respondent submits that any prejudice to the Applicant can be compensated by costs, she’s not actually offering to pay any costs.
a. Her lawyer acknowledges she has no current ability to pay costs.
b. He did not agree that any costs should be ordered at this time in relation to the prejudice created by the requested amendment.
c. He submitted that costs on this issue should be dealt with at the same time costs are dealt with generally, at the conclusion of the motion.
[28]. The Respondent’s approach – “allow my amendment now, and we’ll talk about costs later” – is inconsistent with Rule 11(3) which clearly requires that both the prejudice related to the amendment and the appropriate compensation need to be determined simultaneously, as part of the determination as to whether the amendment should be permitted.
[29]. The Respondent’s opposition to quantifying costs in relation to this specific motion is also inconsistent with Rule 24(10) which requires that costs be determined promptly after each step in the case.
[30]. Even if no further case management is ordered, the Applicant’s potential costs entitlement stemming from this last minute amendment would be quite significant. It would be unfair to the Applicant to allow the amendment – and the inevitable adjournment – without ensuring that he is fully compensated for the resulting disadvantage.
[31]. I make no comment on the merits of the Respondent’s request for retroactive child support. The issue is the timing and scope of the request for the amendment.
[32]. Rule 11(3) is an important rule, but it’s not the only rule:
a. The primary objective of the rules is to enable the court to deal with cases justly. (Rule 2(2).
b. The court must ensure procedural fairness to all parties; time and expense should be reduced (Rule 2(3).
c. The parties and their lawyers are required to help the court promote the primary objective (Rule 2(4).
[33]. Courts generally take a flexible and even forgiving approach to amending pleadings. But in an era of heightened concern about the cost, duration and emotional drain of family litigation, we cannot allow Rule 11(3) to relieve litigants of their fundamental obligation to pursue their claims in a diligent and efficient manner.
[34]. The reason why the Respondent waited so long may not matter. But the consequences of her delay matter a great deal.
[35]. The Respondent’s motion to amend is dismissed.
[36]. Counsel requesting costs should serve and file written submissions within 15 days. Responding submissions are due 10 days later. Any reply is due 7 days after that.
Pazaratz, J.
Released: April 7, 2014
COURT FILE NO.: D563/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID MIO
Applicant
-and-
DANIELLE MIO
Respondent
REASONS FOR JUDGMENT
Pazaratz, J.
Released: April 7, 2014