Kent v. Kent (Ellis), 2011 ABQB 611

Court of Queen ’ s Bench of Alberta Citation: Kent v. Kent (Ellis), 2011 ABQB 611 Date: 20110930 Docket: 4801 138034 Registry: Calgary Between: David Austin Kent Plaintiff - and - Alicia Marjorie Kent aka Alicia Marjorie Ellis Defendant _______________________________________________________ Memorandum of Decision on Costs of the Honourable Madam Justice M.C.

Erb _______________________________________________________ [ 1 ] The parties dispute quantum and liability for costs arising from this Court’s oral Reasons for Judgment dated June 24, 2011 which settled the issues of corollary relief and matrimonial property following the end of their marriage. [ 2 ] Both parties now claim that they were the successful party. [ 3 ] The Plaintiff, Dr. Kent, submits that he should be awarded costs because the majority of the issues were decided in his favour.

He further claims that the Defendant caused a 15-month delay in the matter proceeding to trial and asks this Court to compensate him for costs and expenses which the trial adjournment caused. He seeks costs pursuant to

Schedule C, Column 3 of the Alberta Rules of

Court , Alta. Reg. 124/2010. [ 4 ] The Defendant Ms. Ellis asks the Court to consider costs through two different lenses, both of which, she submits will take the court to a conclusion that she is the substantially successful party. More specifically, she claims that she received a net monetary award in her favour and achieved a higher ratio of her claim overall. [ 5 ] She not only seeks costs under

Schedule C, Column 4 but asks the Court to order double costs on the basis that the Plaintiff prolonged the litigation by unilaterally cancelling mediation and judicial dispute resolution meetings, made unfounded accusations of bad faith, brought a claim that was unfounded at law, all of which resulted in a seven -day trial for which her counsel required extensive time to prepare. Successful Party [ 6 ] Rule 10.29(1) , Alberta Rules of Court , Alta.

Reg. 124/2010 states that: A successful party to a...proceeding is entitled to a costs award against the unsuccessful party, and the unsuccessful party must pay the costs forthwith... [ 7 ] It would appear that a “successful party” need not succeed on every point. Rather, a finding of “substantial success”, based on a balanced assessment of the outcome and the nature of the final judgment, is sufficient: Mahe v. Boulianne , 2010 ABCA 74 at para. 6 . [ 8 ] Despite the Defendant’s creative efforts to advance her position as the successful party, the outcome of this case undeniably weighs in Dr.

Kent’s favour and he is entitled to costs. [ 9 ] Dr. Kent was substantially successful on all major aspects of the case. The Court found that he did not stand in the place of a parent to Ms. Ellis’ children, that she was not entitled to ongoing spousal support or that matrimonial assets should be distributed equally. [ 10 ] I do not accept the lenses through which the Defendant urges the Court to view her more modest trial success. In Katrib v.

Katrib , 2008 ABQB 162 at 32, Read J. considered the limited utility of net monetary awards in determining costs in divorce cases: ...Although often a judgment debt will occur after a divorce action, because matrimonial property division is so often dealt with at the same time, the amount of the debt and whether it is owed by the defendant to the plaintiff or vice versa, is much more often a measure of which party wishes to retain a major asset, such as the matrimonial home, in specie than it is a measure of which party has been more successful. [ 11 ] The fact that the Defendant was granted a net monetary award does not overshadow the fact that the majority of the findings did not weigh in her favour. [ 12 ] In addition, the fact that the issues can be carved up to show that one party may have had some success on a higher ratio, is not an appropriate method of determining which party was successful.

In Mahe , , at para. 6 , the Alberta Court of Appeal viewed costs in the context of the ultimate result as more important. The successful party should not be determined based solely on a scoreboard analysis of issues and claims. [ 13 ] Although the Defendant may have been successful on some points (a modest finding of lost income earning opportunities, the

Audi motor vehicle, and not being equally responsible for the matrimonial debt), the way she tallied the issues does not accurately or fairly reflect the nature of the decision. Costs Attributable to Delay [ 14 ] In addition to party-party costs, the Plaintiff claims that the Defendant caused unreasonable delay and asks this Court to award him additional compensation for the costs that he incurred as a result. [ 15 ] Rule 10.33(2) (a), Alberta Rules of Court , Alta. Reg. 124/2010 enables a court to consider: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; [ 16 ] The Plaintiff claims that the Defendant unnecessarily delayed the trial by 15 months by refusing to find alternate counsel when her first lawyer ceased to act. An adjournment was granted by Justice Jeffrey on November 26, 2011.

The Plaintiff submits that he incurred costs in additional spousal support payments, the inability to repossess his home in which the Defendant continued to dwell until Justice Jeffrey granted an order for her removal and loss of unrecoverable work time booked off for the first trial. While the Defendant was ensconced in his home in Courtenay she collected rental income on her pre marital property.

He also submits that the Defendant did not provide a reasonable explanation for the delay and effectively took her time in acquiring new counsel. [ 17 ] I accept that the Defendant caused delay, that her conduct in doing so falls under the scope of Rule 10.33(2)(a), and that the Plaintiff is entitled to reasonable compensation. [ 18 ] This Court acknowledges that the Defendant also asked for increased compensation as a result of the Plaintiff’s conduct at trial. In addition to rejecting her claim for costs, I do not find that there is any merit to this argument. Rule 10.31(2)(

c) states that reasonable and proper costs do not include costs related to dispute resolution or judicial dispute resolution processes unless a party engages in serious misconduct in the course of the resolution process. Given the relationship between the parties and the difficulties they encountered throughout the litigation process, I do not find that the Plaintiff engaged in “serious misconduct” by terminating the resolution processes when he saw that they were futile. Applicable Column Costs under

Schedule C [ 19 ] The Courts are afforded broad discretion in awarding costs. Rule 10.31(1) (b) , Alberta Rules of Court , Alta. Reg. 124/2010 enables a Court to order costs award in any amount that it considers appropriate in the circumstances. [ 20 ] Counsel for the Plaintiff seeks costs pursuant to Column 3. Counsel for the Defendant sought Column 4 costs. [ 21 ] The former Alberta Rules of Court , Alta. Reg. 390/68, designated Column 1 as the default column for divorce and corollary relief matters.

While the new Rules of Court do not explicitly state that costs in matrimonial disputes should be assessed under Column 1, some Courts have continued to use Column 1 in the same way.: Grant v. Grant , 2010 ABQB at para. 2. Accordingly, Column 1 can be seen as the starting point for costs in this case. [ 22 ] However, I find that it is reasonable to adjust costs upwards as a result of the parties’ positions regarding Columns 3 and 4, the significant issues which required resolution and the Defendant’s delay of the trial proceedings and to some extent during the interlocutory stage.

[ 23 ] I agree with the Defendant, although for different reasons, that the costs should be assessed under Column 4 and I exercise this Court’s discretion accordingly. Additional Costs [ 24 ] Plaintiff’s counsel also submitted a claim for weeks of preparation for trial based on an hourly rate. I am not satisfied that there is sufficient reason to deviate from the table amount. Or from ordinary trial preparation pursuant to item10(1), Column 4. [ 25 ] The Defendant is ordered to pay to the Plaintiff costs in accordance with Column 4,

Schedule C of the Alberta Rules of Court , Alta. Reg. 124/2010, together with reasonable disbursements. Heard on the 12 th day of September, 2011. Dated at the City of Calgary, Alberta this 30 th day of September, 2011. M.C. Erb J.C.Q.B.A. Appearances: Erin J. Kuzyk Dunphy Best Blocksom LLP for the Plaintiff Gabor Zinner Zinner Law Office for the Defendant