Andres v. Andres, 2011 ABQB 536

Court of Queen ’ s Bench of Alberta Citation: Andres v. Andres, 2011 ABQB 536 Date: 20110901 Docket: 4812 007656 Registry: Wetaskiwin Between: Naomi Dawn Andres (Nahirny) Plaintiff - and - Kenneth Brian Andres Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Shortly before the scheduled trial date, and after 3 pre-trial conferences which spanned the period August 27, 2009 - April 27, 2011, the defendant father advised the plaintiff that he intended to raise an undue hardship claim with respect to child support. Also, in breach of the Rules of Court, the father provided his affidavit of records less that 2 clear days prior to the scheduled trial date. Despite this background, the father was of the view that the trial should go ahead as planned. The court agreed with the mother that the trial had to be adjourned. Ms.

Nahirny now asks the court for costs of the trial adjournment. [ 2 ] Mr. Andres is at fault for causing an adjournment of the trial of the matrimonial property, spousal support and child support issues. Therefore, Ms. Nahirny is entitled to costs of the trial adjournment. [ 3 ] Typically, costs of a trial adjournment will be greater than the tariff item for a contested adjournment ($150.00 regardless of the column) but less than the total tariff item for trial preparation: the party who suffers by reason of the adjournment is entitled only to thrown-away costs.

In the circumstances here, in particular having in mind that no expenditures have been thrown away and that the

adjournment application itself has helped to narrow trial issues, the thrown-away costs awarded are $650.00. 1. Background [ 4 ] The parties have been separated since August 2008. They are the parents of two children; each of the parents has primary parenting responsibility for one of the children. [ 5 ] The parties have been involved in three pre-trial conferences, the first of which was held in August 27, 2009 and the last of which was held on April 27, 2011.

A trial dealing with the issues of divorce, parenting, child support, spousal support, and division of matrimonial property was scheduled to be heard on June 13, 2011. [ 6 ] Prior to June 13, 2011, the parties agreed with one another that the parenting issues could not be heard at the scheduled trial because the assessment and counselling that had been ordered had not yet taken place and, in light of the serious parenting problem which exists, it was relatively clear that a court would greatly benefit from expert opinion relating to the parenting issues.

After hearing from each of the parties, the court issued a comprehensive order dealing with parenting during the period of adjournment. [ 7 ] On June 4 th , 2011, Mr. Andres raised for the first time the fact that he wanted to raise an undue hardship claim in relation to child support [ 8 ] On June 9 th , 2011, Mr. Andres provided his affidavit of records to Ms. Nahirny. Ms. Nahirny ’ s lawyer did not have sufficient time, between June 9 th and June 12 th to review that disclosure. [ 9 ] On June 13 th , I arrived in Wetaskiwin to hear the trial.

However, I was one of the judges who had been identified as a judge who was disqualified as a trial judge; I assume that my disqualification arose as a result of my hearing of an interlocutory matter in these proceedings on which I issued a written decision.

In the circumstances, where the parties essentially agreed that an adjournment of the trial was required, the issue of whether I could actually hear the trial was not explored with the parties or their lawyers. [ 10 ] As a result of the contested adjournment application, counsel worked together to clarify and narrow the trial issues; the resulting order will guide conduct until the trial. 2. Who is responsible for the trial adjournment? [ 11 ] At the hearing, the court concluded that the trial had to be adjourned because of Mr.

Andres ’ late initiatives. [ 12 ] Where it is raised, an assessment of potential or claimed undue hardship is an integral aspect of a child support award. Spousal support cannot be determined without having first determined child support: a parent ’ s resources will go first to supporting their child and only secondarily to supporting their former spouse. By raising an undue hardship issue days before the commencement of the scheduled trial, after not raising that issue during any one of 3 pre-trial conferences, Mr.

Andres has essentially made it impossible to deal with the issues of both child support and spousal support at trial. [ 13 ] By filing his affidavit of records less than 2 clear days before the commencement of a trial, Mr. Andres has essentially made it impossible to deal with the division of matrimonial property. Indeed, since at least one of the records filed by Mr. Andres consists of an appraisal, Mr. Andres has also apparently failed to comply with the Rules of Court relating to the filing of expert reports.

Moreover, the filing of an affidavit of records in breach of the timing required by the Rules effectively prevents pre-trial cross-examination on the affidavit; because legitimate cross-examination is such a powerful tool in our justice system, it is only in exceptional circumstances that the court will countenance interference with that right. No exceptional circumstance is alleged by Mr. Andres.

[ 14 ] In the result, Mr. Andres has caused the adjournment of the scheduled trial. This is therefore one of the situations in which “ fault ” can be attributed in relation to the adjournment. As the person who caused the adjournment, Mr. Andres is liable to pay costs of the adjournment. 3. What are the thrown away costs for adjournment of the trial? [ 15 ]

Schedule C establishes $150.00 as the tariff item for a contested adjournment application. That amount can, of course, be adjusted up or down depending on the circumstances of a particular case. Trial preparation tariff items vary according to the tariff: the tariff goes as high as $6,000.00. [ 16 ] However, as I understand the case law, Ms. Nahirny is not entitled to the whole tariff item for trial preparation; rather she is only entitled to thrown away costs.

The reasoning undergirding that conclusion is that, inevitably, some of the trial preparation is not lost, but will be used whenever the trial is actually heard. Actual thrown away costs must be determined on a case-by-case basis so as to properly reflect the reality of each situation. [ 17 ] Ms. Nahirny estimates that no more than 10% of the trial preparation she has done in anticipation of a trial commencing on June 13, 2011 will be useful to her on the re-scheduled trial date. With respect, for two reasons, I am unable to agree.

First, focus by each of the parties on the trial issues in preparation for the anticipated June 13, 2011 commencement date has allowed each of the parties to refine their positions relative to the contested issues; in other words, while a trial could not be held, the proceedings have nevertheless moved forward. Specifically, at the adjournment hearing itself, time was taken to review the main trial issues outstanding with a view to ensuring that those issues could be dealt with as economically and fairly as possible. Second, while some credibility issues may arise out of any cross-examination Ms.

Nahirny decides to undertake with respect to Mr. Andres ’ affidavit of records, the general outline of the parties ’ claims in relation to child support, spousal support and division of property were well known and well established as of June 13 th . There is no reason to believe that the core of those issues will change prior to the re-scheduled trial. Naturally, some up- dating and review will be required. Nevertheless, overall, the bulk of the preparation to which Ms.

Nahirny has been put in anticipation of a June trial will not be wasted but will be brought to bear whenever the new trial can be scheduled. [ 18 ] In the circumstances here, I have concluded that Ms. Nahirny is entitled to $650.00 in costs for the adjournment of the trial as representing the amount of thrown away costs. I have reached that conclusion by comparing the re- scheduling of a trial to the hearing of a special chambers application: prior to a re-scheduled trial, Ms. Nahirny will have to go over an outline of the then matters in issue.

In the circumstances here, that is very similar to the preparation that would go into a family law special chambers application. One important difference from a special chambers matter is that, in addition to reviewing the issues with counsel, Ms. Nahirny will have to prepare to testify about the trial issues, and will also have to

schedule and prepare any other witnesses whom she intends to call. That requires more work than the work involved in preparing for a special chambers application. Heard on the 13 th day of June, 2011. Dated at the City of Wetaskiwin, Alberta this 1 st day of September , 2011. J.B. Veit J.C.Q.B.A. Appearances:

William B. Hogle, Q.C. for Ms. Naomi Andres Nahirny Martin G. West, Farnham West Stolee LLP for Mr. Kenneth Andres