LDW v. KDM, 2011 ABQB 800

Court of Queen ’ s Bench of Alberta Citation: LDW v. KDM, 2011 ABQB 800 Date: 20111219 Docket: 4801 122280 Registry: Calgary Between: L. D. W. Plaintiff - and - K. D. M. Defendant Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. See the Family Law Act, s. 100. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ [ 1 ] Following trial and judgment ( 2011 ABQB 384 ) these parties now each seek an award of costs against the other. Background

[ 2 ] By way of background the following two comments bear repeating. First, from the trial judgment: [2] This was a very high conflict litigation spanning 6 ½ years from their separation until the end of trial. The parties accomplished little consensually over that time. They were frequently before the Court to decide their issues, large and small - well over 20 times I was told. Each says the other forced this approach. They could not, or would not, find common ground or reasonable compromise on anything of significance.

This was despite numerous and extensive settlement meetings, in JDR sessions and case management sessions, with two of the more experienced members of this bench. Both parties maintain they tried very hard to settle matters short of trial, but the other side was unreasonable.

In the mean time, for the children it has been truly a mean time, the cloud of acrimony and mis-trust always hovering and all too often drawing them into its vortex. [3] The evidentiary portion of the trial was at times repetitive, meandered through the peripheral and focussed unduly long on how each of the various episodes of high conflict was entirely the other party’s fault. While offering a degree of relevant narrative to the issues brought to the Court for decision, these meanderings were only nominally probative.

Most of that probative value came not from any insights offered as to which parent might have been ‘right’ or ‘justified’ about their course of conduct, but from what they revealed about the two parties by their attribution of blame to the other and how they would act in front of or involve the children in those situations. [ 3 ] Second, the case management justice assigned to this action, during one of those meetings with the parties, observed: I don’t know what the problem is between you and [KDM]. You can’t agree on anything. It doesn’t matter how basic the point. ...

The problem is, I’m going to -- is it’s going to be ordered to trial, and unfortunately, I’m going to throw a hopeless problem on the lap of a trial Judge. I’m going to do a pre-conference trial report telling the Judge he or she is going to be dealing with a mess, a terrible, terrible mess with two people who hate each other, who are completely unreasonable and will not agree to anything, and the poor trial Judge is going to be sitting there to try and sort out your lives. ... your life is going to be sorted out by a Judge. It’s unfortunate, but that’s the way it’s going to be.

Costs Claimed [ 4 ] KDM seeks costs for:

i) Three failed judicial dispute resolution meetings (settlement conferences) before other members of this Court; ii) An intervention by a psychologist, Ms. Ailon; iii) A case management “intervention” by another member of this Court; iv) A Real Property Report for the matrimonial home; and

v) Trial on a double costs basis because, he says, the decision was more favourable to him than was his pre-trail offer of settlement to LDW. [ 5 ] He presented proof of payment of the disbursement amounts above and a draft bill of costs for the remainder, totalling $57,258.56. [ 6 ] LDW opposes KDM’s claim and seeks an award of costs against him for:

i) half her cost of two appraisals of the matrimonial home ($328.13), ii) half her cost of two appraisals of their Mountain View property ($2,283.70), iii) half of Janice Parker’s tax overpayment on the Mountain View property ($5,032.11), iv) half of the Mountain View maintenance costs (taxes - $3,519.68; irrigation - $848.50; Epcor - $4,327.94; insurance - $6,869.35; insurance deductable and siding repairs - $5,385.24), and

v) an amount in lieu of an equalization of Canada Pension Plan credits ($7,245.63).

She provided supporting documentation for these claims. [ 7 ] In addition LDW claims costs against KDM of unspecified amounts for having succeeded at trial on the issues of: retroactive child support, spousal support, arrears of spousal support, “major decision making for the children”, access to Leanne, third party parenting co-ordinator directed, children’s passports, RRSP equalization and dissipation of matrimonial property. [ 8 ] She further claims an award of costs for what she describes as “litigation abuse” by KDM for the years between separation and trial when he was representing himself and “making frequent Family Chambers applications by Notices of Motion which contained numerous requests which could not possibly be heard in one morning.” She refers further to minimal response time in respect of such applications and spending over $104,000.00 on legal assistance during that period.

She maintains that matters should have resolved through the various settlement processes and efforts undertaken and that the ensuing trial was not necessary. She requests “that costs be awarded against KDM for his causing unnecessary trial and legal expenses by not utilizating the mediation process.” [ 9 ] In her reply submissions LDW added in a claim for $14,000 that she says she paid her mother “in recognition for her assistance in editing and typing during the litigation process.” Applicable Rules of Court [ 10 ]

Section 21 of the Court of Queen’s Bench Act , R.S.A. 2000 c. C-31, accords me the discretion to “make any Order relating to costs that is appropriate in the circumstances.” The Court has complete discretion regarding the quantum and manner of division of costs, taking into account the guidance in Rules 10.29 , 10.31 and 10.33 , Alberta Rules of Court , Alta. Reg. 124/2010: 10.29(1) A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, and the unsuccessful party must pay the costs forthwith, notwithstanding the final determination of the application, proceeding or action, subject to (

a) the Court’s general discretion under rule 10.31, ... 10.31(1) After considering the matters described in rule 10.33, the Court may order one party to pay to another party, as a costs award, one or a combination of the following: (

a) the reasonable and proper costs that a party incurred to file an application, to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action, or (

b) any amount that the Court considers to be appropriate in the circumstances, including, without limitation,

(

i) an indemnity to a party for that party’s lawyer’s charges, or (ii) a lump sum instead of or in addition to assessed costs.

(2) Reasonable and proper costs under subrule (1)(a) (

a) include the reasonable and proper costs that a party incurred to bring an action; (

b) unless the Court otherwise orders, include costs incurred by a party (

i) in an assessment of costs before the Court, or (ii) in an assessment of costs before an assessment officer; (

c) do not include costs related to a dispute resolution process described in rule 4.16 [ Dispute resolution processes ] or a judicial dispute resolution process under an arrangement described in rule 4.18 [ Judicial dispute resolution arrangement ] unless a party engages in serious misconduct in the course of the dispute resolution process or judicial dispute resolution process; (

d) do not include, unless the Court otherwise orders, the fees and other charges of an expert for an investigation or inquiry or the fees and other charges of an expert for assisting in the conduct of a

summary trial or a trial.

(3) In making a costs award under subrule (1)(a), the Court may order any one or more of the following: (

a) one party to pay to another all or part of the reasonable and proper costs with or without reference to

Schedule C [ Tariff of Recoverable Fees ]; (

b) one party to pay to another an amount equal to a multiple, proportion or fraction of an amount set out in any column of the tariff in Division 2 of

Schedule C or an amount based on one column of the tariff, and to pay to another party or parties an amount based on amounts set out in the same or another column; (

c) one party to pay to another party all or part of the reasonable and proper costs with respect to a particular issue, application or proceeding or part of an action; (

d) one party to pay to another a percentage of assessed costs, or assessed costs up to or from a particular point in an action.

(4) The Court may adjust the amount payable by way of deduction or set-off if the party that is liable to pay a costs award is also entitled to receive an amount under a costs award.

(5) In appropriate circumstances, the Court may order, in a costs award, payment to a self-represented litigant of an amount or part of an amount equivalent to the fees specified in

Schedule C.

(6) The Court’s discretion under this rule is subject to any specific requirement of these rules about who is to pay costs and what costs are to be paid.

... 10.33(1) In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate.

(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

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; (

b) a party’s denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party’s defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. [ 11 ] Regarding the claim for double costs, the Rules state: 4.29(1) Subject to subrule (4), if a plaintiff makes a formal offer to settle that is not accepted and subsequently obtains a judgment or

order in the action that is equal to or more favourable to the plaintiff than the offer, the plaintiff is entitled to double the costs to which the plaintiff would otherwise have been entitled under rule 10.31(1)(

a) or 10.32 for all steps taken in relation to the action or claim after service of the offer, excluding disbursements.

(2) Subject to subrule (4), if a defendant makes a formal offer to settle that is not accepted and a judgment or order in the action is made that is equal to or more favourable to the defendant than the offer, the defendant is entitled to costs for all steps taken in the action in relation to the action or claim after service of the offer.

(3) A defendant is entitled to double the costs provided for in subrule (2), excluding disbursements, if (

a) subrule (2) applies, and (

b) the action or claim that is the subject of the formal offer to settle is dismissed.

(4) This rule does not apply (

a) if costs are awarded under rule 10.31(1)(b), (

b) in the case of a formal offer to settle made with respect to an application for judgment after a

summary trial, if the offer is made less than 10 days before the date scheduled to hear the application for judgment, (

c) in the case of a formal offer to settle made with respect to any other matter, if the offer is made less than 10 days before the date scheduled for the trial to start, (

d) in the case of a formal offer to settle that is withdrawn in accordance with rule 4.24(4), or (

e) if in special circumstances the Court orders that this rule is not to apply. 4.24(1) At any time after a statement of claim, a claim under the Family Law Act, an application to vary a custody order under the Extra- provincial Enforcement of Custody Orders Act or an originating application to vary a corollary relief order granted by another court under the Divorce Act (Canada) is filed, but 10 days or more before (

a) an application for judgment by way of a

summary trial is scheduled to be heard, (

b) a trial is scheduled to start, or (

c) an application is scheduled to be heard or considered, one party may serve on the party to whom the offer is made a formal offer to settle the action or a claim in the action.

(2) To be valid a formal offer to settle must be made within the period described in subrule (1), be in Form 22 and include the following information:

(

a) the name of the party making the offer; (

b) the name of the party or parties to whom the offer is made; (

c) what the offer is and any conditions attached to it; (

d) whether or not the amount of the offer is inclusive of interest and, if not, to what date and at what rate interest is payable under the terms of the offer; (

e) whether or not the amount of the offer is inclusive of costs and, if not, the amount or scale of the costs and the date to which they are payable under the terms of the offer; (

f) the requirements that must be complied with to accept the offer; (

g) a form of acceptance of the offer; (

h) notice of the costs consequences specified in rule 4.29.

(3) Unless a valid formal offer to settle is withdrawn under subrule (4), the offer remains open for acceptance until (

a) the expiry of 2 months after service of the offer or any longer period specified in the offer, or (

b) the start of a hearing of an application for judgment by way of a

summary trial, the start of a trial or the start of a hearing of an application, as the case may be, whichever occurs first.

(4) A valid formal offer to settle may not be withdrawn unless (

a) the Court first gives permission for the withdrawal, which may be given only if the Court is satisfied that there are special circumstances that justify withdrawal, and (

b) the party who made the offer serves written notice of withdrawal on every party who received the offer. Costs Claimed other than for Trial [ 12 ] Many of the “costs” claimed by LDW are not eligible to be recovered as costs. First, the tax overpayment by Janice Parker was a matrimonial debt, not legal process costs or, to use the words in the Rules, costs “to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action” [Rule 10.31(1) (a)]. In any event this claim was considered within the trial judgment for the distribution of matrimonial property.

[ 13 ] Second, Canada Pension Plan credits are matrimonial property not legal process costs. They too were also addressed within the trial judgment. If LDW considers KDM to not be complying with the trial outcome on that point her recourse is via enforcement proceedings, not repeating the claim here under the guise of costs.

I do note that KDM in his submissions on costs provided an update on the compliance steps he has taken following the trial judgment. [ 14 ] Third, the maintenance expenses for the Mountain View property also are not amounts incurred “to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action.” They may have been necessitated by LDW to preserve the value of the matrimonial property she held in trust for herself and KDM pending distribution of its value at trial, but that does not make them recoverable as legal costs.

LDW argues that since KDM was awarded at trial a portion of the value of the Mountain View Property, he should also have to pay a commensurate share of the pre-trial costs of maintaining that property. Her logic is sound, but her timing off. The time to prove these claims was at trial. A party is expected to present its evidence on such matters at trial both in support of its primary position and in support of its alternate position(s).

At trial KDM could then have tested the evidence, adduced contrary or exculpatory evidence to oppose the claims or acknowledged an obligation to share in the expenses. [ 15 ] Fourth, the $14,000 purportedly paid to her mother is not recoverable because it was claimed for the very first time in LDW’s reply submissions, after the deadline for all costs to be claimed and too late for KDM to respond to the claim, contrary to the principles of fundamental justice, and because no evidence was provided in proof of the claim. [ 16 ] LDW is entitled to half the cost of the appraisals on the Mountain View property from KDM ($2,283.75).

These were relied upon in the trial decision and the amounts were proven by LDW in her cost claim. But I decline to award her any portion of the matrimonial home appraisal cost since that appraisal was not ultimately necessary for the legal process or relied upon at trial. Pursuant to an Order of this Court the parties before trial agreed with a third party purchaser on its fair market value for sale purposes.

KDM is entitled to recover half of his cost of the Real Property Report on the matrimonial home, since he incurred the full cost in order for the Court ordered sale to proceed ($339.25). [ 17 ] I decline to award KDM any of the cost of Ms. Ailon’s psychological services. Justice LoVecchio’s Order of January 25, 2011 is clear. He ordered the cost of that intervention to be borne by KDM. It is not appropriate that he now ask for something different of this Court; I do not have jurisdiction to vary or hear appeals of such orders of other members of this Court. I also note that the statement of Ms.

Ailon’s costs submitted by KDM is support of his claim to recover the amounts paid include charges from September 2011, months after trial concluded. They are outside the scope of these costs applications. [ 18 ] Regarding the claim by KDM for costs of the three failed JDRs and the case management intervention both parties shall bear their own costs. Rule 10.31(2)(

c) says that “unless a party engages in serious misconduct in the course of the dispute resolution process or judicial dispute resolution process” no costs shall be recovered by either side for that step in the litigation. Neither party has demonstrated any “serious misconduct” on the part of the other during those processes. [ 19 ] Both parties say trial would not have been necessary had the other side not so unreasonably refused to settle the matter before trial. KDM argues that LDW unreasonably declined to settle the matter during settlement conferences.

As proof of her being unreasonable he relies on the result at trial being worse for her than the basis she could have settled the claim at.

However this is not the same as “serious misconduct.” The record suggests that LDW was very motivated to settle and fully engaged in the process, just holding strongly to very different views of what would be in the best interests of her children than KDM’s view and, as it turned out, the Court’s view. [ 20 ] Regarding LDW’s claim for costs for KDM’s alleged litigation abuse, she says that costs should be awarded against KDM for his “causing unnecessary trial and legal expenses by not utilizating the mediation process.” There is a difference between not using mediation processes and not agreeing to another party’s position within such processes.

Here I have absolutely no doubt that both parties expended considerable effort in trying to resolve their disputes short of the personal and financial costs incurred through trial processes. I also have absolutely no doubt that one or both parties were unreasonable on some or all of the issues. When it comes to custody of L, I do not fault either party for refusing to acquiesce to the demands of the other on that point. Both were genuinely and intensely arguing for what they considered to be in her best interests.

I do not regard KDM to have been abusing the litigation process for failing to agree to LDW’s position on parenting of L and S. [ 21 ] She also argues that he abused the litigation process by his numerous motions, often on very short notice and often comprising many separate requests. She believes he was doing this for ulterior purpose, namely to exhaust her resources and her resolve,

knowing she was paying a lawyer for each of these while he was not. She is not contesting whatever was decided about costs on any individual application, and that information was not provided to me, but claiming for his pattern of relentlessly applying. [ 22 ] I do not find evidence of the intention that she imputes to KDM.

On the contrary, the findings at trial (see para’s [35] and [82] for example) were that much of the interlocutory activity between separation and trial resulted from the nature of the initial Order (the terms of which KDM agreed to in order to see his children again, on the advice of his counsel -- that he later regretted relying on) and LDW’s rigid insistence that KDM be held to its precise terms long after it had outlived its efficacy. This approach forced KDM back to court since he could not get any reasonable flexibility from LDW.

In the circumstances I decline to award LDW costs for the alleged litigation abuse by KDM. The requisite case for such a claim has not been made out. Costs Claimed for Trial [ 23 ] The more significant claim before me is for trial costs. Both parties are correct that a significant influence on the exercise of the Court’s discretion in awarding costs is which party succeeded in the effort. Where success is divided generally there will be no costs awarded to either side. [ 24 ] Each side claims they were more successful than the other.

LDW supports her assertion by comparing the trial decision, issue by issue, with the final argument positions espoused by each party. KDM supports his claim that he was the more successful by comparing the trial outcome to his pre-trial settlement offer. [ 25 ] Neither party succeeded on every issue that they left to the court for decision. However on the single item of greatest contention between the parties, KDM’s application for change of physical custody of both their youngest daughter L and their son S, KDM was successful.

If that was not in issue between the two I believe the parties would have been able to settle the other issues without trial. The record on this application shows that the parties were agreed (or at least very close to agreed) on most issues between them except the issue of custody. That issue prevented pre-trial settlement. But the parties would not settle other less contentious issues and limit what proceeded through trial.

They could have avoided portions of the trial had they done so. [ 26 ] LDW observes in her submissions that the “main contentious issues were a parenting arrangement for the children, KDM’s claim upon my Mountain View property, re-training for me and issues surrounding the sale of the matrimonial home.” In respect of each of those issues, KDM was the successful party.

The items for which LDW succeeded are items that did not make their way onto her list of “main contentious issues.” [ 27 ] On the matter of legal custody, “success” for costs purposes might be said to be equally divided, since each lost a say over one of their two children. In my view, neither parent but rather the children succeeded, having been finally relieved of the emissary role between the warring parental factions ... extricated from the cross-hairs of two parents that were unable to maturely contend with their divergent and mutually exclusive approaches to parenting.

Neither party asked for this outcome; the children’s best interests necessitated it. No costs either way should flow as result of that outcome. [ 28 ] But on the matter of physical custody, or day to day care and control, KDM was successful. The result exceeded both his application and his pre-trial offer. [ 29 ] On the remainder of the issues success was divided, with KDM coming out slightly ahead in economic terms after all the various support and matrimonial property determinations were tallied (see in this regard the

Schedule to the Corollary Relief Order -

Part II). [ 30 ] But given the primacy of the parenting issue at trial, and its being the main reason the parties did not settle prior to trial, should KDM be entitled to double costs for the trial for having received a result better than his pre-trial offer? [ 31 ] The pre-trial offer KDM refers to was a draft consent order that his counsel proposed to LDW on February 23, twelve days

before the start of trial. It followed on the heels of a meeting with the Case Management Justice February 22. It was a comprehensive offer of settlement addressing all outstanding issues. With respect to L the offer was to share physical custody on a week on week off basis. KDM did better than that in the trial judgment. [ 32 ] The parties were before the Case Management Justice again on February 28, 2011, seven days before the start of trial. The record suggests that as soon as LDW made it clear that she was rejecting any change to the physical custody of L, KDM withdrew the entire offer.

LDW had indicated a willingness to accept the proposed basis to settle many (but not all) of the other issues. Therefore the offer was an all or nothing offer.

LDW had to agree to it all, not just select parts. [ 33 ] Accordingly, it would not be reasonable to now revisit that offer on an item by item basis to assess KDM’s claim for double costs, since it was not possible for LDW to accept only some of those items to avoid double costs. [ 34 ] The proposed order that KDM’s counsel sent on February 23 rd , that KDM now refers to as an offer triggering an entitlement to double costs, did not satisfy the requirements of Rule 4.24(2). It was not in Form 22.

Rule 4.24 (2) says: “To be valid a formal offer to settle must ... be in Form 22 and ... .” [ 35 ] Further, it did not include any mention that the offer was to be treated as a “formal offer” that could be presented to the trial judge after judgment was rendered for purposes of arguing for greater costs and, in any event, it did not notify LDW of the costs consequences specified in Rule 4.29.

Apart from being mandatory [Rule 4.24(2)(h)], such notice was all the more important for LDW since she was representing herself and could not be expected to know the significance for cost purposes of a formal offer prior to trial. It is not enough for KDM’s counsel to have told LDW this risk, if in fact that occurred as was intimated before me when the parties were settling the terms of the Orders following trial. [ 36 ] Therefore I decline KDM’s application for double costs. [ 37 ] Nevertheless he was successful on each of the issues LDW acknowledged in her submissions to be the main ones in contention.

I therefore do consider KDM to be entitled to costs for the trial, just not a doubling of them as claimed. I also consider it warranted to adjust those costs in two respects. [ 38 ] First, they should be adjusted downward for the portion of the trial dedicated to issues in which success was roughly divided and for which it appears that LDW was prepared to resolve before trial. It was KDM that refused to do so unless his position on parenting of L and S was also accepted by LDW. [ 39 ] Second, they should be adjusted upward as a consequence of the manner in which the trial was approached by LDW.

Specifically, she was not prepared which caused many delays including the Court spending most of the first two days with all parties present looking after matters that should have been completed prior to commencement of trial and explaining the process. There were adjournments for LDW to get advice from time to time, that the Court procured for her on a pro bono basis from experienced and gracious members of the bar. There was extensive repetition in the evidence presented and in the cross-examination undertaken.

No notice was given to KDM prior to trial of various documents LDW wished to adduce at trial nor was there disclosure prior to trial of tape recorded conversations that LDW wished to adduce at trial. The trial itself was protracted as a consequence of LDW’s forays into irrelevant matters, repeatedly presenting argument in the context of evidence and cross examination questions, and as a consequence of her trying to cope with the stress and demands of the process after preparing deep into each night of trial. [ 40 ] It was LDW’s choice to represent herself.

She would say that economic attrition over the course of the separation (including KDM’s numerous interlocutory applications over the years) left her with no choice in that regard; she would say that she was without funds to retain and instruct a lawyer to represent her. That her funds had been depleted was accurate. But as I indicated in respect of her claim for costs for alleged litigation abuse, in my view the numerous applications were predominantly caused by LDW’s strict adherence to the rigid terms of the initial interim order of the court.

This Court also found that LDW was intentionally under-employed and that she was the driving force behind the parents continuing to enroll their children in one of the most, if not the most, expensive fitness and social clubs in the city. Therefore I do not accept that LDW had no choice in the matter of proceeding to trial without representation for economic reasons.

[ 41 ] In any event of the cause for LDW being without counsel at trial, it is not fair for that choice to visit upon KDM extraordinary incremental cost from her lack of preparation, repetition, failure to disclose, and time taken to receive explanations on trial processes and options. LDW compensated for her uncertainty as to the implications of various trial options by extensive repetition and over inclusion.

The Court is placed in an awkward position in such circumstances, and will often (as in this case) permit the self-represented litigant to go on at length rather than curtail her opportunity to be heard, to avoid her saying too little and leaving out what she may not realize is relevant and material. All of this, however, resulted in a trial process much longer than necessary. [ 42 ] In this regard I am aided by the decision of Justice Murray in CT Comm Edmonton Ltd. v.

Shaw Communications Inc. , 2007 ABQB 482 , where he stated at paras. 8 and 12: [8] The Defendants have been put to considerable expense in dealing with these complex and extensive applications, many of which would not have been necessary had the Plaintiff been represented by competent counsel.

The Defendants say that therefore it is unfair to them that they have been put to this expense and that the Plaintiff should be obliged to at least pay party and party costs of the applications. ... [12] In this case one would hope that had the Plaintiff had a lawyer representing it that for the most part these applications would have been unnecessary. Nonetheless, the situation is as it is, litigants are entitled to represent themselves.

They will make many mistakes as a result and the Court does its best to deal with such problems, keeping in mind that the resulting additional expense should not unfairly affect the adverse parties who may be represented by counsel. [ 43 ] I am also mindful of the following comments of Justice Pazaratz in Tomlinson v. Hornick , 2008 CarswellOnt 420 : Family litigation has become prohibitively expensive, with financial consequences adversity impacting the children the parties purport to protect.

Where only one of the parties hires a lawyer, an unfortunate dynamic can arise where the unrepresented party loses track -- or concern -- about ongoing costs. While self-represented parties must be shown consideration and patience, we must be careful not to bend or ignore the rules to such an extent that litigants start to perceive there is a strategic advantage to not hiring a lawyer. [ 44 ] Finally, I recognize that costs awards rarely should recover the full amount that a successful litigant incurs.

Each party should bear an economic consequence as a check on their behaviour through the process. [ 45 ] While I might wish that LDW would not now have to bear the cost consequences of conducting her case at trial as she did, it is not fair for me to now overlook her conduct, downplay it or otherwise buffer it, when doing so would be at KDM’s expense.

I take some comfort from knowing LDW believes strongly in people experiencing the consequences of their actions, based on my hearing at trial of her urging the Glencoe and the childrens’ schools to fully impose consequences upon her children for their conduct. [ 46 ] In my assessment, if the parties had both focussed on the matters truly in dispute and had come prepared for trial, it would have concluded within one to one and one-half weeks, including argument. It was 4 weeks in length, not counting the process for receiving final argument and then reply argument.

A half week to a full week was consumed by matters that should have been agreed before trial. The remaining trial time was caused by LDW. [ 47 ] KDM is awarded all the disbursements in his draft bill of costs, that is: $1577.91. In respect of the legal fees claimed ($44,000.00 on the double costs basis), considering all the foregoing, I award KDM the sum of $30,000.00. Including GST on both the fees ($1,500.00) and the disbursements ($78.90), the total is $33,156.81. Conclusion

[ 48 ] KDM is awarded in costs the net difference between the $2283.75 payable by him to LDW and the $33,496.06 ($339.25 + $33,156.81) payable by her to KDM, that is $31,212.31. Therefore he is entitled to receive his remaining $25,000 held in trust from his share of the proceeds of sale of the matrimonial home, plus LDW’s $25,000. The remaining $6,212.31 due to him from LDW is payable by her forthwith. Dated at the City of Calgary, Alberta this 19 th day of December, 2011. P.R. Jeffrey J.C.Q.B.A. Appearances: L.D.W. for herself, the Plaintiff K.D.M. for himself, the Defendant