Muller v. Muller

2010 BCSC 1432 Muller v. Muller

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Muller v. Muller, 2010 BCSC 1432 Date: 20101012 Docket: E26000 Registry: New Westminster Between: Cara Ann Muller Plaintiff And Robert Muller Defendants Before: The Honourable Mr. Justice N. Brown Reasons for Judgment (In Chambers) Counsel for the Plaintiff: I.C. Stramwasser Counsel for the Defendants: On his own behalf Place and Date of Hearing: New Westminster, B.C. September 7, 2010 Place and Date of Judgment: New Westminster, B.C. October 12, 2010 [1] On November 19, 2009, I ordered that the defendant may travel to the Caribbean with the children in March and/or April 2010 for up to 10 days on the condition that he provide 14 days' notice of the dates of the trip; that the defendant may exercise access from 6:00 pm on the day before departure for the March and/or April 2010 trip; that the plaintiff shall provide the necessary travel documents at least 48 hours before departure, including a signed travel authorization; that the parties shall work with the parenting coordinator to adjust the parenting plan as necessary to accommodate the trip; that the defendant shall provide the disclosure ordered by the Honourable Mr. Justice Brine on December 12, 2008 within 60 days; that after the defendant provides disclosure, as ordered by the Honourable Mr. Justice Brine on December 12, 2008, the parties shall review child support for

2008 and 2009 based on the defendant's line 150 income from his 2008 Notice of Assessment and the parties shall make the necessary adjustments within seven days of the review and notify FMEP of any adjustments; that the plaintiff shall advise FMEP within 48 hours that the parties have a interim agreement to lower child support based on line 150 of the defendant's 2008 tax return, effective immediately; that the Honourable Mr. Justice Brown is seized of the Police Enforcement Clause issue only; and that the parties shall make written submission on costs within 30 days. [2] In his notice of motion filed October 22, 2009 Mr. Muller also sought a review of child support and changes to the schedule for access. [3] A review of previous orders indicates that Judges have previously dealt with the matters raised by Mr. Muller. [4] On November 2, 2009 Justice Crawford ordered that the parties were to retain a parenting coordinator within 14 days, and, on November 9, 2009 that: the parties shall work with the parenting coordinator to, inter alia, settle their access schedules without coming to court. [5] He also ordered the parties to exchange their 2007 and 2008 tax returns and notice of assessments forthwith. [6] Settlement of the November 9, 2009 became necessary and that was settled on December 3, 2009. Before settling it, Justice Crawford clarified the intent of the order with a

written communication forwarded to the parties. He explained the purpose of retaining a parenting coordinator was so that they could deal with their access issues without coming to court. [7] The plaintiff submits that the defendant's motion was insignificant and unnecessary because Justice Crawford had already made an order the parties produce travel documents to each other upon request. [8] With respect to reviewing child support, Justice Brine previously made an order that the parties would review child support, with the review set to take place by May 31, 2009. A review of child support could not take place without up to date financial information. Mr. Muller had still not provided his 2007 and 2008 tax returns and notice of assessments, requiring Mr. Justice Crawford on November 9, 2009 to order Mr. Muller to produce them forthwith. [9] As counsel for the plaintiff points out, rather than provide full financial disclosure on time for review based on disclosed financial information, he chose to unilaterally set his motion on November 19, 2009. [10] Mr. Muller's unilateral setting of motions is another of the grounds relied upon by the plaintiff for costs. [11] Counsel for the plaintiff also points out that on the same day of the hearing set before me, Mr. Muller had set down two other motions and that the parties were already scheduled for hearing on a fourth motion in that

same week. [12] Counsel for the plaintiff submits that the defendant's actions prevented opportunity for out of court settlement. Further, there is no evidence Mr. Muller attempted to resolve any difficulties through the parenting coordinator. [13] The plaintiff therefore submits that the defendant's motions were trivial and/or unnecessary because his motion had already be heard and adjudicated upon; were governed by previous orders; and provided little or no opportunity for out of court resolution. Counsel points out that most of the matters dealt with in my order were resolved by consent. [14] Counsel for the plaintiff seeks costs at the highest scale, saying that the only logical justification of the defendant's persistence in having his motion heard on November 19, 2009 was to bleed the plaintiff with litigation costs. The plaintiff seeks special costs under Rule 57(3) because she had no choice but to defend against what she submits was an unnecessary application. [15] Mr. Muller seeks costs as well, based on the fact he was granted some orders he sought. However, given the history of the proceedings, his failure to follow previous orders, to follow directions with respect to resolving disputes with the parenting coordinator, his setting down matters without notice; and given that the substantive matters were dealt with by consent he is not entitled to an order for costs. [16] I find an order of lump sum costs in favour of the plaintiff is fitting on this application. Considering the history of the litigation and the pressing need to minimize points of contention, I fix them at $800, inclusive of disbursements. "N. Brown, J."