Gillies v. Monar, 2011 ABQB 728

Court of Queen ’ s Bench of Alberta Citation: Gillies v. Monar, 2011 ABQB 728 Date: 20111124 Docket: FL01 06978 Registry: Calgary Between: Cliff Wilhelm Josef Monar Applicant - and - Liesel Gillies Respondent _______________________________________________________ Memorandum of Judgment of the Honourable Mr. Justice Craig M. Jones _______________________________________________________ [ 1 ] This judgment deals with costs to be awarded (“ Costs ”) in respect of a parenting application heard before me from October 31 st , 2011 to November 4 th , 2011, inclusive.

I delivered oral judgment in respect of this application on November 9 th , 2011. My judgment dealt with parenting time and arrangements regarding

section 7 expenses (“

Section 7 Protocol ”). Matters other than parenting time and the

Section 7 Protocol remain to be dealt with on a subsequent application. Background [ 2 ] Prior to my judgment on November 9th, Dr. Gillies and Mr. Monar, had, pursuant to an order of Mr. Justice R.J. Hall, been observing the following arrangement: 1. Dr. Gillies would have primary parenting responsibility with their daughter, Olivia, living with Dr. Gillies (“ majority time parent ”); and

2. Mr. Monar having Olivia with him every alternate weekend from Friday mornings (around 11:45) until Monday mornings(around 8:30) (“minority time parent”). (referred to as the “11/3 arrangement”, in reference to the number of evenings in a two week period which Olivia would spend witheach parent) [3] Mr. Monar sought an order altering the 11/3 arrangement such that the majority of Olivia’s evenings in a fourteen day period(“Units of parenting time”) would be spent at his home. Failing that order, he sought an order directing that Olivia would spend equaltime with each parent (“50/50 arrangement”). Dr.

Gillies opposed Mr. Monar’s application, arguing for retention of the 11/3arrangement. Parenting Judgment [4] I decided as follows: 1. in each two-week cycle the minority time parent should have five nights consisting of (

i) Thursday evening until Mondaymorning (every other weekend), together with each alternate Thursday overnight (“9/5 arrangement”); and 2. majority parent time status should, for the time being, continue to be entrusted to Dr. Gillies. Resources [5] I found guidance in respect of this determination regarding Costs in a number of decisions, including, inter alia: 1. Metz v. Weisgerber 2004 ABCA 151 , [2004] A.J. No. 510 (Alberta Court of Appeal) (“Metz”); 2. MacPhail v. Karasek [2006] A.J. No. 1453; 3. Katrib v. Katrib 2008 ABQB 162 , [2008] A.J. No. 256 (Alberta Court of Queen’s Bench); and 4. Brown v. Silver [2010] A.J. No. 375. [6] I have also taken into account: 1. the provisions of

section 93 of the Family Law Act (Alberta); and 2. the directions and discretions set forth in the Alberta Rules of Court,

Part 10, Division 2, subdivision 1 and in Divisions 1 and 2 ofSchedule C to those rules. Guiding Principles [7] The decision in Metz articulates the importance of awarding Costs in family law matters in a manner consistent with theparameters employed in civil litigation generally (“Base Case”). I respectfully suggest that the Base Case may be stated as follows: An award of costs in litigation should impart to litigants economic consequences arising from assessing and advancing a position on amatter of law of importance to them, specifically, and society, generally, which place financial demands on the other party’s resources in

responding and on society’s resources to adjudicate. In making such awards, the Court should determine the parties’ relative success in assessing and advancing their respective positions (“ Measure of Success ”). [ 8 ] The Court of Appeal extensively reviewed the social and economic policy justifications for the Base Case. It also pointed out the dangers of departing from the Base Case on the basis of intangible and immeasurable considerations, which may not be reflective of consistent and predicable application of the principles inherent in the Base Case. Application of the Guiding Principles A. Parenting [ 9 ] The Applicant (Mr. Monar): (

a) sought an order altering the 11/3 arrangement such that he would now become the majority time parent or, failing that order, an order implementing a 50/50 arrangement; and (

b) secured two additional Units of parenting time. [ 10 ] The Respondent (Dr. Gillies): (

a) sought to retain her status as majority time parent, by retaining the 11/3 arrangement; and (

b) retained her status as majority time parent but with a reduction of two Units of parenting time. [ 11 ] What is each party’s Measure of Success? First, my review of the evidence convinces me that neither party advanced the 9/5 arrangement before trial in a manner that would allow the Court to come to the conclusion that an offer reflecting my judgment was made by one party and rejected by the other. The evidence satisfies me that any such offers which may have been made had conditions attached.

Those conditions related to monetary matters (support and property division) which were not the subject of this application. [ 12 ] Mr. Monar and Dr. Gillies each achieved partial success. Mr. Monar succeeded in securing two additional Units of parenting time. Dr. Gillies succeeded in retaining the majority of Units of parenting time. [ 13 ] Mr. Monar failed to achieve majority parenting time status, or even the 50/50 arrangement. Dr. Gillies failed to retain the 11/3 arrangement. [ 14 ] In the result, with respect to the issue of parenting time, neither party’s Measure of Success exceeds the other’s. B.

Section 7 Protocol [ 15 ] Mr. Monar advanced a

Section 7 Protocol. Dr. Gillies did not initially embrace that proposal. She did, however, suggest some refinements to that proposal which I incorporated in my decision.

[ 16 ] Mr. Monar’s suggestions with respect to an appropriate

Section 7 Protocol were, for the most part, reflected in my judgment. By advancing a

Section 7 Protocol which, with modifications, was ultimately accepted, he enjoyed a small Measure of Success in that respect which Dr. Gillies did not enjoy. Decision [ 17 ] In light of the above analysis, I direct that Mr. Monar shall receive twenty (20%) percent of his Costs, determined in accordance with Column 1 of

Schedule C. Dr. Gillies bears her own Costs. [ 18 ] With respect to experts’ reports and the costs associated with their attendance at the application (“ Experts’ costs ”): 1. Experts’ costs in respect of Dr. Gary Kneier will be shared equally between the parties; and 2. Experts’ costs in respect of Dr. Matsalla shall be borne exclusively by Mr. Monar. [ 19 ] Dr. Kneier’s contribution was valuable to the Court and the Court’s decision regarding parenting largely reflects his recommendations. [ 20 ] Dr. Matsalla’s participation arose from Mr. Monar’s decision to challenge elements of Dr.

Kneier’s report and, while of some assistance to the Court, did not alter the Court’s assessment of the merits of Dr. Kneier’s recommendations. Heard on the 31st day of October, 2011 to the 4th day of November, 2011. Dated at the City of Calgary, Alberta this 24 th day of November, . Craig M. Jones J.C.Q.B.A. Appearances: Jay C.P. Damen Arkell Damen Hoffman for the Applicant Linda Goold Barrister & Solicitor

for the Respondent