Gibson v. Gibson, 2011 ABQB 659

Court of Queen ’ s Bench of Alberta Citation: Gibson v. Gibson, 2011 ABQB 659 Date: 20111028 Docket: FL10 03042 Registry: Red Deer Between: David Curtis Gibson Applicant - and - Lyndsay Erin Gibson Respondent _______________________________________________________ Memorandum of Decision (Costs) of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Gibson applies for costs for the September 7 th , 2011 hearing on the grounds that the court dismissed Mr. Gibson`s application of that date. Mr. Gibson contests the obligation to pay costs on the grounds that the court`s underlying substantive decision was wrong. [ 2 ] Ms. Gibson is entitled to costs of the September 7 th hearing, and to costs of the costs hearing, a total of $1,194.50, payable forthwith. Costs of a substantive trial level decision are awarded on the basis that, unless and until successfully appealed, the underlying substantive decision is correct.

Cases and authority cited [ 3 ] By the court: Huet v Lynch 2000 ABCA 213 , [2000]A.J. No. 890 1. Background [ 4 ] The court`s underlying substantive decision in this matter is found at 2011 ABQB 564 . In that decision, the court found that Mr. Gibson had not established a material change of circumstance and was therefore not entitled to a change in the order of March 12, 2010. [ 5 ] On this application, Mr.

Gibson argues that he should not pay costs for the underlying hearing because the decision on the substantive hearing was wrong in two ways: it did not deal with ongoing support and it wrongly interpreted his position with respect to line 150 income. 2.

Costs are awarded on the assumption that the underlying substantive decision is correct [ 6 ] Unless the court agrees that its earlier substantive decision was made in error, as sometimes happens with respect to either a slip or more serious matters, the only way in which an allegation of error in the underlying decision can be advanced is by appealing the earlier decision. A comprehensive remedy can be obtained on appeal since the appeal decision can deal with costs of the decision appealed from. Here, the court does not agree that it erred in its earlier decision.

Therefore, the costs assessment is made on the basis set out in the substantive decision. [ 7 ] A costs hearing is not the appropriate forum in which to raise an issue about the correctness of the underlying decision. As our Court of Appeal noted in Huet , a court may re-hear an earlier decision, although the circumstances in which such a re-hearing will be granted are relatively limited. Here, no warning was given by Mr. Gibson that he intended to ask for a re-hearing of the September 7, 2011 motion. In any event, in the circumstances here, the court does not agree with Mr.

Gibson that its underlying decision is wrong.

a) No decision concerning ongoing support [ 8 ] In March 2010, a court ordered Mr. Gibson to pay $1,150.00 per month for the support of his two children. That order continues to apply unless it is varied by a court or terminated either by a court or operation of law. Mr. Gibson applied to vary that order and his application was denied; therefore, the March 2010 order continues to apply to Mr. Gibson and to constitute Mr. Gibson’s ongoing child support obligation. With respect, this court did, therefore, deal with ongoing support.

b) Error concerning the use of line 150 income [ 9 ] Mr. Gibson states that he did not, at the September 7 th hearing, take the position that the court should set income for child support purposes based on line 150 income. Mr. Gibson relies on the Court of Appeal decision cited and referred to in the underlying written decision. This court is, of course, bound by the appeal decision. The appeal decision emphasizes that a court must make a fair determination of annual income: fairness avoids both the use of historical income when present circumstances have changed (Ms.

Gibson’s error) and the use of current income when deemed income would increase the total income available to pay child support (Mr. Gibson’s error). As to the fact of Mr. Gibson’s error, a review of the FTR recording of the September 7 th hearing confirms that Mr. Gibson urged the court to use his line 150 income of a little over $60,000.00 for 2010 to reduce the court ordered child support based on $80,000.00 income, and his anticipated line 150 income of less than $30,000.00 for 2011 to further reduce child support.

In other words, his submissions did not leave any room for the attribution of additional income beyond line 150 income. With respect, this court did, therefore, correctly characterize Mr. Gibson’s reliance on line 150 income as faulty.

[ 10 ] Overall, this is a situation in which Mr. Gibson made a solemn promise, which he knew would be the basis for a court order, to pay child support of $1,150.00 per month. Court orders are serious obligations. Indeed, Parliament has stated that anyone who, without lawful excuse, disobeys a court order commits a crime: s. 127 Criminal Code of Canada .

More practically, once a child support debtor voluntarily enters into a court order to pay a certain level of child support, the child support creditor should feel comfortable in relying on that court order - to make arrangements for new accommodation, to buy the children seasonal clothes, to register the children in extra- curricular activities, etc. Where a child support debtor, like Mr.

Gibson, says that he should be relieved of his solemn promise to pay a specific amount of child support because of something that happened within days of his making the promise, a court is entitled to require of the support debtor some explanation of his abrupt about face. Mr. Gibson failed to provide this. Not only did Mr.

Gibson not explain why he did not know that his job with his parents would terminate within days of making the promise to pay $1,150.00 per month in child support, he did not explain why he did not set up his own business of delivering materials to the oil patch, given that he had been doing that type of work for his parents for some time, or why he did not attempt to get similar work from a different employer.

Nor did he explain what medical condition he suffers from which prevents him from earning the level of income he was earning when he made his solemn promise nor why, if he is deliberately underemployed, that is not a chosen strategy to avoid child support obligations. Therefore, assuming that the court has jurisdiction to rehear the September 7 th hearing, the court does not change the decision reached at the conclusion of that hearing. [ 11 ] Unless and until the underlying decision is successfully appealed, this court must proceed on the basis that the underlying substantive decision is correct.

In that decision, Ms. Gibson was successful in resisting Mr. Gibson’s application for a change to the existing court order; therefore, Ms. Gibson is entitled to costs of the September 7 th hearing. [ 12 ] If an appeal court were to agree with Mr. Gibson that the underlying decision was wrong, then the appeal court would also have the authority to set aside the costs decision along with the substantive decision. In that way, the justice system ensures that the positions of all parties can be fairly dealt with. 3. Costs of the costs hearing [ 13 ] Ms. Gibson has been successful in her application for costs.

She is therefore entitled to costs of the costs hearing; those costs are awarded at the

Schedule C rate for contested hearings - $500.00. That amount, together with the $694.50 requested for the original hearing - based on an award of $500.00 for the hearing itself, $94.50 for the cost of a transcript of the cross-examination on affidavit and $100.00 as a counsel fee for the cross-examination - means that the total amount of costs payable by Mr. Gibson to Ms. Gibson for the September 7, 2011 application is $1,194.50. Heard on the 26 th day of October, 2011. Dated at the City of Red Deer, Alberta this 27 th day of October, 2011. J.B. Veit J.C.Q.B.A. Appearances:

R.D. Young, Lee Inglis Albrecht for Ms. Gibson Bruce Bothwell, Siewert Bothwell for Mr. Gibson