Elliott v Elliott, 2024 ABCA 49

In the Court of Appeal of Alberta Citation: Elliott v Elliott, 2024 ABCA 49 Date: 20240215 Docket: 2301-0053AC Registry: Calgary Between: Vincent Orrin Elliott Appellant - and - Lisa Louise Elliott also known as Lisa Louise Irving Respondent _______________________________________________________ The Court: The Honourable Justice Patricia Rowbotham The Honourable Justice Michelle Crighton The Honourable Justice William T. de Wit _______________________________________________________ Memorandum of Judgment Delivered from the Bench Appeal from the Order by The Honourable Justice O. Malik

Dated the 2nd day of February, 2023 Filed on the 1st day of March, 2023 ( Docket: 4801-150326) _______________________________________________________ Memorandum of Judgment Delivered from the Bench _______________________________________________________ Rowbotham J.A. (for the Court): [ 1 ] This is an appeal of costs only. The chambers judge awarded $5000 in costs after the appellant’s unsuccessful application to relitigate several issues in this long-standing litigation over child support.

The appeal on the merits of the chambers judge’s decision was discontinued as the issues are moot, given the recent trial decision: Elliott v Elliott , 2023 ABKB 617 . The appellant wished to continue his appeal on one issue, costs, and we agreed to hear his submissions. [ 2 ] Before the chambers judge the respondent sought costs on a solicitor and own client basis and counsel estimated those costs at “north of $5700”.

The chambers judge considered Rule 10.33 of the Alberta Rules of Court , Alta Reg 124/2010 and the factors relevant to an award of costs, including that the issues raised by the appellant had been raised in two earlier pre-trial conferences and in front of three other judges. He described the appellant’s application as “totally [unnecessary]”. This factor is identified in Rule 10.33(2) (d). [ 3 ] In the end the chambers judge did not order solicitor and own client costs but enhanced costs of $5000. In general, previous costs awards have been assessed under

Schedule C, Column 3. [ 4 ] Costs decisions should not be interfered with unless they reflect an error in principle or the costs award is plainly wrong: Hamilton v Open Window Bakery Ltd , 2004 SCC 9 at para 27 ; see also, PricewaterhouseCoopers Inc v Perpetual Energy Inc , 2021 ABCA 16 at para 181 , leave to appeal to SCC dismissed, 39597 (8 July 2021). [ 5 ] We are not persuaded of any reviewable error in the chambers judge’s costs award. The appeal is dismissed. Discussion as to costs of the appeal [ 6 ] The respondent is entitled to

Schedule C, Column 3 costs of the appeal. This amounts to $10,800 and we direct that the appellant pay $10,800 inclusive of disbursements to the respondent forthwith. Appeal heard on February 12, 2024 Memorandum filed at Calgary, Alberta this 15th day of February, 2024 Rowbotham J.A. Appearances: Appellant, V. Elliott

A. Wilson for the Respondent