Kirkwood v. Kirkwood

2018 BCSC 1540 Kirkwood v. Kirkwood

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kirkwood v. Kirkwood, 2018 BCSC 1540 Date: 20180907 Docket: E11147 Registry: New Westminster Between: Ronald Sinclair Kirkwood Claimant And Katherine Anne Kirkwood Respondent Before: The Honourable Madam Justice Burke Reasons for Judgment Counsel for the Claimant: M. Brandon Counsel for the Respondent: C.G. Garcia Place and Date of Hearing: New Westminster, B.C. August 9, 2018 Place and Date of Judgment: New Westminster, B.C. September 7, 2018

INTRODUCTION [1] The remaining issues in this family law case are: 1. Child of the Marriage; 2. Costs.

BACKGROUND [2] These matters arise from a marriage breakdown that occurred in 2000. The background is detailed in my reasons of 2018 BCSC 197. I will not set it out here. Child of the Marriage Issue - is Ronnie still a child of the marriage as defined under the Divorce Act? [3] Mr. Kirkwood has applied seeking clarification for the order arising from the judgment in this matter. There is some debate as to whether this is a new application, or a clarification of the order. Ultimately, it does not make a difference. Evidence has been provided and for the reasons that follow, I find that Ronnie ceased to be a child of the marriage as of December 1, 2017. [4] Mr. Kirkwood sought an order that child support for the parties' son, Ronnie, terminate as at August 31, 2017, on the basis he is no longer a child of the marriage as defined under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). Mr. Kirkwood said Ronnie turned 19 on August 11, 2017, and continues to reside with the respondent. While Ronnie enrolled in Kwantlan Polytechnic University for the September 2017 semester, Mr. Kirkwood says he attended on a part-time basis, took only two courses until November 2017 and dropped out before completing the term. [5] In addition, Mr. Kirkwood points out that prior to his 19th birthday, Ronnie was the sole owner and operator of Ronald's Rubbish, a rubbish removal company and he still is.

Mr. Kirkwood's affidavit evidence indicates that Ronnie registered his sole proprietorship on October 24, 2017 but also that Ronald's Rubbish began in 2016. Mr. Kirkwood deposes that online reviews and materials from Yelp and Facebook indicate that the company was initially operating with a short-box Ford F-150, then a long-box Dodge Ram, and finally a 2005 Ford F-450. The F-450 was purchased in November 2017 for $6,160. It required $4,000 in repairs and passed inspection on November 21, 2017. Mr. Kirkwood also points out that the company's website appears to show a number of trucks. [6] Mr. Kirkwood says despite a request, Ronnie did not provide bank accounts prior to December 2017 and refused to provide the purchase and sale documents for the other vehicles. [7] Ms. Kirkwood says that child support for Ronnie should continue until November 30, 2017, as he remained a child of the marriage until that time. Both Ronnie and Ms. Kirkwood maintain that Ronnie registered and attended three courses at Kwantlan from September to November, 2017, when he dropped out in order to pursue his business plan for Ronald's Rubbish. She also seeks reimbursement for half of the tuition paid for this period of time. [8] I note briefly that Ronnie is at present still estranged from his father. Legal Principles [9] Section 2(1) of the Divorce Act defines a child of the marriage as follows: "child of

the marriage" means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessities of life; [10] The pursuit of post-secondary education can result in an adult child remaining a child of the marriage: Nordeen v. Nordeen, 2013 BCCA 178 at para.

15. It qualifies as an "other cause" for continuing dependency under s. 2(1)(b): Neufeld v. Neufeld, 2005 BCCA 7 at para. 18. [11] In the well-known case of Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C.S.C.), a list of eight factors is set out that may assist the court in making this determination. These factors are not a checklist nor are they requirements. Rather, they are considerations for the court in assessing whether the child's situation is consistent with the definition of "child of the marriage". [12] In considering whether a child's educational pursuits justify the child retaining a child of the marriage status, the Court in Farden said as follows at para. 15: (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; (2) whether or not the child has applied for or is eligible for student loans or other financial assistance; (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; (7) what plans the parents made for the education of their children,

particularly where those plans were made during cohabitation; (8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought. [13] The factors in Farden, while again, are not a checklist, are helpful in determining whether the pursuit of education is a valid reason for continued dependence. [14] An adult child who completely rejects his or her father must be aware of the consequences of his or her actions towards the father: Marsland v. Gibb, 2000 BCSC 471 at para.

34. A parent and child relationship is not just an economic dependency. If a child expects to receive support, there is some law to support the proposition that, in the absence of conduct by that parent justifying neglect of the child's duties towards his or her parent, it may be reasonable that the child have a relationship with that parent: Law v. Law (1986), 2 R.F.L. (3d) 458 (Ont. H.C.J.). Mr. Kirkwood says, however, they are not relying heavily on this point. Application of the Principles [15] In this case, Mr. Kirkwood disputes whether Ronnie attended school full-time between September and November 2017. I accept, however, that Ronnie enrolled in and attended three courses, which would be considered full-time attendance at a university. Affidavit evidence has been filed indicating that emails from at least two of the professors were received confirming that he did attend those courses. These were positive emails indicating a connection with the courses. While an email from the third professor has not been provided, I am not prepared to draw an adverse inference that he did not attend that course from this absence. [16] Some of the other Farden factors are not present, such as an educational plan made by the parents for Ronnie and the fact that Ronnie has a troubling prior academic history. Ronnie's indication, however, that he was to pursue a business degree and his

interest in business, as reflected by what was his part-time pursuit of his rubbish business at the time, make this a reasonable or appropriate plan. Ronnie had also just turned 19. This was his first experience at university, which should provide him with the benefit of the doubt regarding his intention to attend university. [17] A significant argument of Mr. Kirkwood, however, is that Ronnie was no longer dependent on his mother as he was essentially running Ronald's Rubbish during this time period. The affidavit evidence indicating that Ronnie was pursuing this opportunity, establishes this was a part-time opportunity when Ronnie commenced it in 2016. There is no evidence that he made substantial funds from this business. [18] By 2017, Ronnie appeared to wish to pursue the business further. While starting at Kwantlan University for the fall semester 2017, Ronnie decided to start the process of developing a business plan with preparations to start a company in 2018. He maintained his studies until late 2017, when he decided to focus on the company start-up. [19] Mr. Kirkwood notes this is suspect as Ronnie was able to buy a truck for over $6,000 during this time period and income from November and December appear to be $5,000 in two months. [20] I agree, however, the payment of tuition and Ronnie's presence in the courses make clear that at this point in time, he was pursuing

his educational opportunity. While his income may have increased - indeed, he indicates he commenced paying his mother $800 a month in rent in February 2018 - at the time in question, these factors lead me to conclude Ronnie remained a child of the marriage. [21] As for the company's other trucks referenced by Mr. Kirkwood's evidence, I find these online reviews and representations are unreliable given that Ronnie has admitted to having asked friends to write reviews and appears to have exaggerated the scope of the company. Ronnie maintains he has only ever owned and used the F-450 truck. Ronnie was only 19 at the time and with evidence to support only the company's use of the F-450, Ronald's Rubbish appears to have been a very small scale operation at the time. [22] In view of all the above, I conclude that the requirement of child support that arises from my decision of 2018 continues until November 2017. Ronnie was a child of the marriage until November 30, 2017. Ronnie no longer is a child of the marriage. [23] The amount of child support owing is $2,412. The evidence also establishes tuition costs of $1,654.71; Mr. Kirkwood is responsible for half of these tuition costs. Costs Issue - what costs are appropriate in this matter? [24] In my reasons for judgement issued February 13, 2018, at para. 111, I noted the parties had each requested permission to provide further

submissions on costs upon receipt of the judgement. I indicated they were at liberty to apply if done within 30 days of the judgement. Otherwise, due to the mixed success of the parties, the parties shall bear their own costs. [25] Ms. Kirkwood says that given the parties did not present submissions on costs, pursuant to Rule 16-1(7) of the Supreme Court Family Rules, costs of a family law case must be awarded to the successful party unless the court otherwise orders. In response, Mr. Kirkwood takes the position the court has already made a determination that there was mixed success and reiterates the position that the parties shall bear their own costs. Legal Principles [26] As per Rule 16-1(7) of the Supreme Court Family Rules, costs of a family law case must be awarded to the successful party unless the court otherwise orders. [27] Bouck J. stated the four-part test for determining whether to award costs in Fotheringham v. Fotheringham, 2001 BCSC 1321 at para. 46: 1. First, by focusing on the "matters in dispute" at the trial. These may or may not include "issues" explicitly mentioned in the pleadings.

2. Second, by assessing the weight or importance of those "matters" to the parties.

3. Third, by doing a global determination with respect to all the matters in dispute and determining which party "substantially succeeded," overall and therefore won the event.

4. Fourth, where one party "substantially succeeded," a consideration of whether there are reasons to "otherwise order" that the winning party be deprived of his or her costs and each side then bear their own costs. [28] The substantial success standard, as described in Fotheringham at para. 45, was affirmed by the British Columbia Court of Appeal in Marquez v. Zapiola, 2014 BCCA 35: [45] Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance. The words "substantial success" are not defined. For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better. That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when [looking] at all the disputed matters globally. [29] The court must make an objective comparison of the relief granted and the results obtained by the parties on major issues of substance with the submissions made at trial in order to determine substantial success: Bird v. Kohl, 2012 BCSC 1424 at para. 22. [30] A costs award is an exercise of judicial discretion. The determination of success, while being informed by monetary values, is a matter of judgment: Clarke v. Clarke, 2015 BCSC 1005 at para.

23. Positions of the Parties [31] Ms. Kirkwood submits that the court should revisit or reconsider the case at bar, relying on Hansra v. Hansra, 2017 BCCA 199. Fundamentally, Ms. Kirkwood argues that she was substantially successful on the most significant claim, the 75% re-apportionment of the family home. Ms. Kirkwood points out this sum dwarfs any other financial issues that were litigated. Furthermore, she did secure some success in other issues including an order for several years of retroactive and prospective child support. Ms. Kirkwood points out Mr. Kirkwood also advanced the position that the respondent should be held responsible for some of the family debt at the time of separation, which was ultimately rejected. [32] Ms. Kirkwood seeks fixed costs of $16,000 for the 7-day trial and $4,000 for preparation. This reflects the global, fixed costs approach from Bird. She is prepared to forego costs on the numerous applications which have taken place over 20 years. [33] Mr. Kirkwood first points out he acted reasonably and would have been significantly worse off accepting Ms. Kirkwood's late April 10, 2017 offer to settle just before the trial. There was no evidence he acted unreasonably. Rather, amongst other unreasonable actions, Ms. Kirkwood was responsible for seeking counsel on the eve of a previously set trial date, and caused an adjournment of this trial from a

February 6, 2017 start date to April 19, 2017. [34] With respect to the issues in the case, Mr. Kirkwood maintains there was mixed success as identified by the court in its reasons. On an issue-to-issue basis, neither party was more successful. Given this, as well as the fact that Ms. Kirkwood has not provided a draft Bill of Costs, Mr. Kirkwood argues that Bird does not apply. Finally, Mr. Kirkwood points out that Ms. Kirkwood has not identified any discrete mathematical or mechanical error to fall under the discretion to reconsider permitted by Hansra. Application of the Principles [35] I remain of the view that this matter resulted in mixed success between the parties. While no doubt the reapportionment of the house was a significant issue between the parties, other issues were added late in the day by Ms. Kirkwood. These contributed to the length and complexity of the trial, especially with respect to the issue of retroactive child support and section 7 expenses such as daycare contributions sought after such a significant delay. [36] Ms. Kirkwood did not appear to be collaborative; despite filing a notice of intention to proceed in the ongoing litigation in February 2016, Ms. Kirkwood delayed the trial a further 11 months and required Mr. Kirkwood to attend a second judicial case conference and a second trial management conference. On the eve of trial, she also sought an

adjournment in order to have legal counsel present. [37] Ms. Kirkwood wanted Mr. Kirkwood to pay retroactive child support dating back to 2002. Counsel for Mr. Kirkwood argued that the appropriate notice of that request occurred in 2013 and Mr. Kirkwood would only be agreeable to paying from that period of time. The court acceded to Mr. Kirkwood's argument and ordered retroactive child support only to 2013. [38] Ms. Kirkwood wanted Mr. Kirkwood to pay $18,900 in retroactive daycare costs. The court found that this claim was not reasonable and indeed very difficult to establish in view of the length of time this had occurred. [39] At the time of the trial Ronnie was close to 19. Seeking to determine issues of this nature after such a significant time period contributed to significant difficulties, thereby lengthening the trial. [40] While Mr. Kirkwood was not successful on occupational rent, he was awarded his tools. [41] Essentially Ms. Kirkwood seeks to isolate one issue on which she was successful. While no doubt this was a significant issue between the parties, the myriad of claims overshadow that one issue such that it cannot be considered that she achieved substantial success in all of the circumstances. When one considers the individual issues, Ms. Kirkwood was not more successful than Mr. Kirkwood. On a global basis, neither party achieved substantial success. [42] In view of all the above and given the mixed success of the parties at trial, the parties should each bear their own costs of this matter. The Honourable Madam Justice E. Burke