Masley v. Sayers, 2011 ABQB 664

Court of Queen ’ s Bench of Alberta Citation: Masley v. Sayers, 2011 ABQB 664 Date: 20111118 Docket: FL10 13351 Registry: Red Deer Between: Kaylan Likara Masley Applicant - and - Jonathan L. Sayers Respondent _______________________________________________________ Memorandum of Decision on Costs of the Honourable Madam Justice J.M. Ross _______________________________________________________ [ 1 ] This appeal under the Family Law Act, S.A. 2003, C. F-4.5 of the Order of Andreasson PCJ dated August 13, 2011 was heard and dismissed orally on September 16, 2011.

The parties sought leave to make written submissions as to costs. They have now done so. [ 2 ] Costs are sought with respect to two interim applications as well as the appeal itself. The initial contested application on August 22, 2011 resulted in an Interim Without Prejudice Stay Order. This Order was granted pending the provision of transcripts of proceedings in Provincial Court to the Respondent and the Court. The second contested application was brought on September 9, 2011.

On this occasion the Court provided directions for an expedited hearing of the appeal on September 16, 2011, and continued the Interim Without Prejudice Stay until that date.

[3] The Respondent seeks costs on the basis that it was fully successful in the appeal, noting that the general costs rule that costsare payable to the successful party applies in proceedings dealing with child custody: Metz v. Weisgerber, 2004 ABCA 151.

TheRespondent further seeks costs payable on a solicitor and client basis, or alternatively, an increase in the amount of taxable costs, arguingthat the appeal and stay application were without merit, and that there was improper conduct in the conduct in that the Appellant did notprovide transcripts from the Provincial Court proceedings to counsel and the Court in advance of the initial stay application. TheAppellant argues that no costs should be payable, or alternatively, costs should be fixed by the Court or pursuant to

Schedule C. [4] The Alberta Court of Appeal has made it clear that solicitor and client costs may be ordered only where justified on the basisof the conduct of a party during the proceedings: Walsh v. Mobil Oil Canada, 2008 ABCA 268 at para. 112, 296 D.L.R. (4th) 178 andPolar Ice Express Inc. v. Artic Glacier Inc., 2009 ABCA 20 at para. 21. The threshold of wrongdoing that is required for an award ofcosts on a solicitor and client basis is very high, Young v.

Young, (SCC), [1993] 4 S.C.R. 3 at 134, 108 D.L.R. (4th)193: “Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the partof one of the parties.” [5] There has been no such conduct by the Appellant herein. While it would have been preferable to provide Provincial Courttranscripts to the Court and the Respondent in advance of the stay application, the failure to do so does not involve a high level ofwrongdoing.

There was no attempt to mislead; counsel for the Appellant advised the Court that he had obtained transcripts, and the StayOrder was made an Interim Without Prejudice Order so that the Court and counsel would have an opportunity to review the transcripts.This required two appearances, rather than one, and each appearance necessitated waiting for the court to have adequate time to hear theparties. These factors can be appropriately taken into account with proper utilization of

Schedule C: the Respondent is entitled to costsfor two contested applications, rather than one. There is no need to increase the scale of costs for each appearance. [6] As to the merits of the applications and appeal, clearly the justices who granted and extended the Without Prejudice InterimStay Order did not consider the applications to be without merit. The Provincial Court Order under appeal altered the residence of thechild and changed the school that she would be attending. There is nothing improper in applying for a stay pending appeal in thesecircumstances.

Further, while I dismissed the appeal, I did not find that it was brought for an improper motive or was frivolous andvexatious. The Appellant was unrepresented at the trial, and put in evidence on the appeal that she had been advised by her formerlawyer that the court appearance would be for the purpose of scheduling a hearing, not for the hearing itself. I denied the appeal becauseI did not find that this incorrect advice prejudiced the Appellant or render the hearing unfair, especially in view of the fact that thehearing proceeded without any objection by the Appellant and with her full participation.

However, this decision to dismiss the appeal isnot the same as a finding that there were no arguable grounds to appeal in the first instance. [7] I conclude that, as the successful party, the Respondent is entitled to costs, but there is no basis to award costs on a solicitorand client basis. There are also no grounds for a discretionary increase in taxable costs. The issues, while obviously important to theparties, were not particularly difficult or complex and did not raise issues of importance to the community at large. The appeal was notlengthy.

There was undoubtedly difficulty on both sides arising from the expedited nature of the appeal. The need for an expeditedappeal arose from the impending school year, not from the parties’ conduct. For example, there was certainly no delay by the Appellantin pursuing the appeal. So there is no basis for increasing the amount of costs payable due to the expedited nature of the appeal. [8] Thus I would not award increased costs. The Respondent is entitled to costs pursuant to Column 1 of

Schedule C of theAlberta Rules of Court. The award of costs applies to the two contested applications ($500 for each) as well as the appeal itself ($1500for a full day). I will also order costs for the filing of written arguments on costs ($1000), as permitted by myself at the conclusion of theappeal. The Respondent was successful in obtaining an order for costs, even though it was not successful in its arguments as to amount. Heard on the 16th day of September, 2011. Written submissions received on the 7th and 28th days of October, 2011 and the 4th day ofNovember, 2011. Dated at the City of Red Deer, Alberta this 18th day of November, 2011.

J.M. Ross J.C.Q.B.A. Appearances: Glen D. Capeling for the Appellant Waldemar A. Igras for the Respondent