Abraham v. Abraham, 2011 ABQB 199

Court of Queen ’ s Bench of Alberta Citation: Abraham v. Abraham, 2011 ABQB 199 Date: 20110325 Docket: 4803 144372 Registry: Edmonton Between: Gary Alfred Abraham Applicant - and - Irene Anne Abraham Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] I last dealt with this matter in written Reasons dated October 26, 2010 now reported at 2010 ABQB 670 .

The present Memorandum deals with an application by both counsel for solicitor-client costs. [ 2 ] It appears that after various attempts to conclude the final divorce documentation in this matter, counsel for Ms. Abraham ceased to act, and Mr. Abraham made the decision to retire. Mr. Abraham gave his first notice dated February 22, 2010 but did not specify an exact date of retirement. Mr. Abraham gave his second notice dated March 22, 2010 and specified July 2, 2010 as the date of retirement.

[ 3 ] By email dated March 24, 2010 Mr. Richard also forwarded a Consent Order for the division of the Public Works Pension directly to Ms. Abraham. This Order had been approved by Public Works as to form. Mr. Richard then received correspondence from Ms. Abraham’s new counsel Ms. Tose dated April 14, 2010 indicating that they would likely consent. Mr. Richard received further correspondence dated April 20, 2010 asking for a copy of the Order that had already been sent to Ms. Abraham and inquiring about the period which was covered by Mr. Abraham’s NAV Canada Pension. By letter dated April 23, 2010 Mr.

Richard provided information to demonstrate that the pension had already been divided. [ 4 ] By letter dated May 4, 2010 Mr. Richard again inquired about receiving a signed copy of the Order and received a response dated May 6, 2010 from Ms. Tose indicating that if Mr. Richard would revise the Order to indicate her consent, she would be pleased to sign the Order. Ms. Tose also inquired about Mr. Abraham’s pending retirement. By letter dated April 26, 2010 Mr. Richard responded and this led to an exchange of correspondence regarding the retirement/spousal support issue. [ 5 ] By letter date May 7, 2010 Mr.

Richard forwarded the revised Consent Order regarding the pension but it appeared that Ms. Tose would not return the Order unless the matter of retirement and ongoing support was also addressed. There was a further exchange of correspondent and finally by fax dated June 17, 2010 Mr. Richard inquired if Ms. Tose would accept service of a Notice of Motion to address all of the issues. She did not respond and Ms. Abraham was served personally, as Ms. Tose was not counsel of record. Ms. Abraham was served on June 21, 2010, at a cost of $129.15. [ 6 ] Ms.

Tose wrote on June 21, 2010 requesting an adjournment which was granted to July 12, 2010. As late as July 5, 2010 Mr. Richard apparently received a request to provide a copy of the Notice of Motion and Affidavit to Ms. Tose’s office notwithstanding that it had already been served on Ms. Abraham more than two weeks earlier. Then on July 8, 2010 Mr. Richard received a request for a further adjournment as Ms. Tose had just received the Notice of Motion and Affidavit and had inadequate time to respond. The matter was further adjourned to July 26, 2010. [ 7 ] On that date after an attendance at the Law Courts, Ms.

Tose agreed to consent to the Order dividing the Public Works Pension. Costs of that application were adjourned to August 17, 2010 when the balance of the issues were to be determined. [ 8 ] On August 17, 2010 Mr. Richard obtained an Order severing the divorce, and the balance of the issues were adjourned to Special Chambers. [ 9 ] The remaining issue regarding spousal support was then heard by me in Special Chambers on September 22, 2010, and I provided Reasons for Judgment on October 26, 2010.

There was mixed success in that application and I indicated that “given the mixed success in this matter, costs may be spoken to”. [ 10 ] Since Ms. Abraham terminated her lawyer prior to the completion of the divorce, and because she refused to get other counsel and to address the outstanding issues, it is submitted that Mr. Abraham incurred legal expenses to complete matters which it was agreed would be completed by Ms. Abraham’s previous counsel. Even once the form of Order was finalized with the Pension Authorities Ms. Abraham would not sign nor would Ms. Tose consent until all of the matters were addressed.

It is submitted that there was obviously no choice but for Mr. Abraham to bring an application to address the issue of the division of the pension. [ 11 ] It is alleged that further attempts to proceed with the divorce throughout that time were ignored, and that in all of the circumstances the divorce and property matters should have been concluded in early 2008 but could not be concluded in the absence of an application by Mr. Abraham. [ 12 ] Mr. Richard particularly notes that he requested Ms. Tose agree to accept service of the Notice of Motion and received no response.

There was therefore no alternative but to incur the additional costs of serving Ms. Abraham directly. Even after service, it is submitted that the matter continued to be delayed and each component of the application could only be addressed after an appearance in Court. [ 13 ] It is also submitted that virtually all of the delay in addressing the matter in 2010 was caused by Ms. Abraham. Given that notice had been provided as early as February 22, 2010 of Mr. Abraham’s intention to retire, the ongoing delay appeared to be an attempt

to stretch out the support payments as long as possible. This included numerous requests for documents already provided, adjournment requests because of lack of time, refusal to address a request to accept service. [ 14 ] Since Ms. Abraham would be receiving the pension division, Mr. Abraham paid the difference between the amount she would be receiving from the pensions and the $2,000 support payment pending the hearing of the matter. Ms. Abraham also made a settlement offer in that amount which was rejected. [ 15 ] Mr.

Abraham’s solicitor and client costs to the conclusion of the Special Chambers application totalled $11,738.67, and Ms. Abraham’s solicitor-client costs total approximately $9,000 to Ms. Tose. [ 16 ] It is submitted that in all of the circumstances it is clear that without an application virtually none of these matters would have ever been addressed.

It is further clear that with the exception of the application regarding spousal support, each attendance in Court could have been avoided by a practical and collaborative approach and Consent Orders. [ 17 ] It is submitted that the provisions of the Minutes of Settlement regarding Costs of Enforcement apply and favour a costs award to Mr. Abraham. Conclusion [ 18 ] The Respondent was originally contacted by the Applicant’s counsel in March 2010. Ms. Abraham was advised that Mr. Abraham would be terminating spousal support when he retired on July 2, 2010.

The argument before me centred around whether the Minutes of Settlement specified a review at the time of such retirement, or whether it provided for an automatic cessation of spousal support. The Applicant Mr. Abraham filed a Notice of Motion on June 18, 2010 seeking the termination of spousal support; division of his pension; direction that the matter proceed by way of desk divorce; and costs on a solicitor-client basis. [ 19 ] The pension was eventually divided by agreement by an Order dated July 27, 2010.

An Order for divorce to proceed by way of desk divorce and a Divorce Judgment without oral evidence were also eventually consented to by both parties on August 17, 2010. I heard the Special Chambers application on October 19, 2010 which was set for a half a day. [ 20 ] The Minutes of Settlement signed by these parties on December 21, 2007 deals with spousal support at paragraph 2.1 as follows:– C.

Minutes of Settlement The Minutes of Settlement, signed by the parties on December 20 and 21, 2007 indicates at paragraph 2.1 the following: The husband shall pay spousal support to the wife in the amount of $2,000.00 per month, commencing on the 1 st day of May, 2007 and continuing on the 1 st day of each and every month thereafter. The parties agreed that upon the husband’s retirement that the issue of the continuation and/or quantum of spousal support shall be reviewed, until such time as the review has occurred, the husband shall continue to pay the $2,000.00 per month. Neither party shall delay the review.

The husband agrees that he shall provide to the wife three (3) months notice of his intention to retire. [ 21 ] It was clear from this provision that the parties had agreed to a review of the continuation and quantum of spousal support upon Mr. Abraham’s retirement. Mr. Abraham failed to pay the full amount of spousal support after July 2010, providing only $2,652.45. This amount was comprised of one cheque for $884.15 provided on August 3, 2010, and one cheque for $1,768.30 provided on September 8, 2010. These amounts purported to be based on a monthly sum of $884.15, being the “amount Mr.

Abraham’s pension would be reduced by”.

[ 22 ] An Offer of Settlement was presented by the Respondent to Mr. Abraham on September 10, 2010, which offer put forward two options for consideration. The first option was for a reduction of the ongoing monthly spousal support payable to the amount of $527 a month until November 1, 2013, with an additional $24,000 lump sum payment, for a total of $44,553. The second option was for a one time lump sum payment of $30,000. [ 23 ] Neither offer was accepted by the Applicant, and the amount of the award pursuant to my Judgment amounts to $60,000.

It is submitted that the Respondent would have been entitled to double costs had the Respondent’s offer been a formal offer to settle. [ 24 ] Subsequently the matter was appealed by Mr. Richard, but prior to any hearing of the appeal was settled, with the result Mr. Abraham paid Ms. Abraham a lump sun of $20,000 and will pay $1,000 per month until April 1, 2013. [ 25 ] The Respondent submits that Column 2 costs in

Schedule C total $3,900, and that this amount does not reflect the volume of work and preparation performed. The actual amount of solicitor-client costs incurred is approximately $9,000. It is submitted that $9,047.39 be awarded to the Respondent for her solicitor-client costs given the Applicant’s patent disregard for the Minutes of Settlement, and given the Respondent’s sincere offer of settlement that turned out to be lower then the ultimate Judgment. [ 26 ] Costs are usually in the discretion of the Court, and party and party on Column 2 would normally be awarded.

I further note in paragraph 16.1 of the Minutes of Settlement signed by the parties, these parties agreed to bear their own legal costs “with respect to all matters arising from the dissolution of their marriage”. However more specifically paragraph 15.12 of the Minutes of Settlement deals with the costs that a party might bear in enforcing the terms of the Minutes of Settlement.

Paragraph 15.12 reads as follows:– Costs of Enforcement If it becomes necessary for one of the parties to enforce any term of this Agreement, then the party who has not complied with any term of this Agreement shall pay all costs arising from such enforcement on a solicitor-client basis. [ 27 ] Given all of the rather unnecessarily complicated circumstances, I conclude that an award of party and party costs plus reasonable disbursements is appropriate in favour of Ms. Abraham given her success on the spousal support aspect of the application.

Heard on the 19 th day of October, 2010 and the 15 th day of March, 2011. Dated at the City of Edmonton, Alberta this 24 th day of March, 2011. Donald Lee J.C.Q.B.A. Appearances:

Anthony D. Richard, Q.C. McGee Richard for the Applicant Lisa M. Tose Jackie Handerek & Forester for the Respondent