P.A.C. (P.A.W.) v W.D.C., 2012 ABQB 104

Court of Queen ’ s Bench of Alberta Citation: P.A.C. (P.A.W.) v W.D.C., 2012 ABQB 104 Date: 20120216 Docket: 4803 118733 Registry: Edmonton Between: P.A.C. (P.A.W.) Plaintiff - and - W.D.C. Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background [ 1 ] I was appointed Case Management Judge of this action approximately two years ago. The matter had a lengthy history, including many appearances in this Court.

That history was reviewed extensively by me in lengthy oral reasons I delivered on June 10, 2011, as well as shorter ones delivered September 16, 2011. I do not propose to reiterate the background in detail in this decision. However, in reaching my decision in connection with this application, I have had regard to all of the background, and, in particular, the events that have transpired during the time that I have been Case Management Judge.

[ 2 ] As a result of the considerable evidence that I had before me leading up to my decisions in June and September, I made the observation that individual incidents or events in this case should not be looked at in isolation, since they were often capable of more than one

interpretation. I further observed that, viewed in the context of a ten year time period, patterns did emerge. I noted that Ms. W. had continued her pattern of blaming everything on Mr. C. and denying many of her behaviours and their impact, even in the face of ample evidence. Where it was not possible for her to deny her actions or to blame them on Mr. C., she has attempted to place the blame on others, including her prior counsel. I concluded that there was ample evidence, going back to immediately following the separation in 2000, of behaviour by Ms.

W. that was not only aimed at alienating the children (K. and W.) from Mr. C., but that clearly had had that effect. For his part, Mr. C. also blamed Ms. W. for the problems in his relationship with his children. I concluded that Mr. C.’s own actions had contributed to their estrangement from him. [ 3 ] In September, I changed W.’s primary residence from that of Ms. W. to Mr. C.

Although the expert witnesses had expressed concern about K. remaining in her mother’s residence, one recommending that I ought to direct that she be sent away to a live-in boarding school, I concluded that I had no authority for removing her from the primary care of both parents and that immediate placement with Mr. C. would likely cause more problems than it might solve. I directed that both K. and W. receive ongoing counselling aimed at repairing their relationship with Mr. C. I also ordered Mr. C. and Ms. W. to attend counselling with Dr. Carter.

Nature of the Application [ 4 ] The parties both seek an order in relation to costs. In addition to costs of the proceedings before the Court, they also seek an order in relation to related costs; specifically, the cost of the bilateral custody assessment and the cost of the various counsellors who have been involved in the matter since they were appointed by me (Dr. Martin, Ms. Chandler, Dr. Carter, and Dr. Haave). Position of the Parties Mr. C. ’s Position [ 5 ] Mr. C. submits that he was largely successful in his application and therefore should be entitled to taxable costs. If

Schedule C is used to determine costs, he submits that he is entitled to $3,500 for hearing time and $1,000 for the preparation of submissions. [ 6 ] Disbursement costs are very high in this matter because the expert witnesses attended the proceedings for a considerable period of time, the majority being the days they testified during the hearing of the matter. Mr. C. takes the position that at least some of the cost can be attributed to delays by Ms. W. in making arrangements for the bilateral custody assessment appointments and counselling appointments ordered by me. Furthermore, Mr.

C. takes the position that neither the assessment nor most of the counselling would have been necessary but for Ms. W.’s actions over the time since they separated. He therefore argues that most of the costs of the assessment and counselling should be apportioned to her. Ms. W. ’s Position [ 7 ] Ms. W. argues that it is premature to award costs and that costs should be awarded following a full trial. She has two main reasons for advancing this argument. The first is based on the possibility that she may have a psychiatric disorder.

She argues that this may be relevant to the issue of costs. [ 8 ] In relation to this first argument, she refers to the decisions in J.M. v T.L.K. , 2009 ABQB 41 , and Ladesic-Hartmann v Hartmann [2008] O.J. No. 3476 . In addition, Ms. W. points to certain comments contained in the record. In particular, she points to a comment made by Dr. Hindmarch in the assessment report he prepared in 2002. At that time, Dr. Hindmarch had commented on Ms.

W.’s behaviour. Although he stated that he could not provide a diagnosis, he had observed that she exhibited both hysterical and paranoid traits. In connection with this application I was provided with an excerpt from a text which outlines Paranoid Personality Disorder. Ms. W. argues that if she has a psychiatric disorder then perhaps she should not have to pay any costs. She submits that no one has yet addressed her possible psychiatric disorder and, since it may be relevant to the issue of costs, no costs should be awarded until this issue can be canvassed further. [ 9 ] Ms.

W. argues, secondly, that this was not a clear victory for Mr. C. Although he was granted primary care of W., K. remains in her mother’s care. Ms. W. points to various comments made by the experts and me which show that Mr. C. contributed to the deterioration of his relationship with his children. Ms. W. argues this is not a classic parental alienation situation but, rather, a situation in which Mr. C.’s actions contributed to an estrangement from his children. [ 10 ] Ms.

W. argues that both parties have contributed to the situation and that an apportionment of costs will result in one party feeling that they have “won” or been “more reasonable”, when it is clear that both have contributed to the situation. Analysis [ 11 ] Generally, a successful party is entitled to costs. This general rule applies not only to trials but also to interlocutory applications. However, judges retain discretion in the matter of costs and can take into account all relevant factors when determining both entitlement to, and the magnitude of, costs.

Even a successful party can be deprived of all or part of costs which would otherwise be payable to that party where the court considers that the successful party has acted in a manner that ought to be discouraged. An example of this was raised by Ms. W. She relies on the Ladesic-Hartmann case, where the unsuccessful party argued that the successful one ought to be deprived of costs on the basis of alleged bad faith and unreasonable conduct. [ 12 ] I consider Mr. C. to have been largely successful in his application.

He was granted primary care of W. and, but for the concerns expressed by me and the expert witnesses in relation to K., I would have changed her primary residence as well. And, although I did make observations about certain deficiencies in Mr. C.’s handling of certain incidents and his withdrawal from previous counselling, both I and the expert witnesses noted that his behaviour in those incidents was not atypical and his behaviour was understandable when considered in the context of what was going on at the time. I consider Mr.

C.’s contribution to the deterioration of his relationship with his children to be significantly less than Ms. W.’s contribution to W.’s and K.’s alienation from their father. [ 13 ] In addition, Ms. W. exhibited a lack of cooperation with, and on occasion a disregard of, orders made by me during the course of case management. It was her lack of cooperation with the Court-appointed assessor (Ms. Chandler) and counsellor (Dr. Martin) that caused them to come before the Court to express their concerns about the safety of the children before their work could be completed.

Examples of that lack of cooperation were outlined in my June 10, 2011 Judgment and need not be repeated here. [ 14 ] I consider that Mr. C. is entitled to receive costs both because I consider him to be the successful party and because I am satisfied that Ms. W.’s conduct caused delays and otherwise added costs to the process. [ 15 ] Furthermore, it was Ms. W.’s conduct that largely accounts for the deteriorating of the children’s relationship with their father, thereby creating the need for the counselling which will be required to mend that relationship.

For that reason, I agree that she ought to bear a larger share of the cost of that counselling and of the assessment process. [ 16 ] The only remaining issue, then, is whether I ought to defer the issue of costs, as suggested by Ms. W., because the recently raised issue of her possible personality disorder has not been fully canvassed. I reject this argument for two main reasons. [ 17 ] Firstly, in advancing this argument, Ms. W. relies primarily on a comment made in the 2002 assessment report of Dr. Hindmarch. Dr. Hindmarch pointed out that he was not in a position to diagnose Ms.

W. with a personality disorder and his comments addressed only his observation that her behaviour suggested certain personality traits typical of disordered personality. Ms. W. underwent testing as part of the assessment conducted by Dr. Chandler in 2011 and the results of that testing did not suggest such a diagnosis for Ms. W. Although I appreciate that the testing was not aimed at a diagnosis, it did not even suggest this as a possible explanation for Ms. W.’s behaviour.

[ 18 ] More significantly, although Ms. W.’s counsel argued this as a basis for delaying the costs award, no recent evidence was provided to me in connection with the costs application. For example, I received no affidavit from Ms. W. suggesting that she believes that her behaviour may be the result of a psychiatric disorder or that she believes she had no control over her actions of the last ten years. [ 19 ] Secondly, I have been presented with no authority that suggests that unsuccessful civil litigants should be relieved of their obligation to pay costs to the successful party because they are mentally ill.

I consider the two case authorities provided by Ms. W. to be distinguishable on their facts and to represent only an exercise of judicial discretion in the specific circumstances of those cases. In J.M. , Justice Graesser concluded that it was not appropriate to make a costs award “at this stage of the matter”. He did, however, find the mother to be in contempt and imposed conditions on her, compliance with which he would then monitor. In Ladesic-Hartmann , the issue was whether the successful party had acted either in bad faith or unreasonably so as to be deprived of all or part of her costs.

In neither of these cases was there a finding of mental disorder on the part of one of the parties or even an argument based on that possibility, nor did they suggest what outcome would flow from such a finding. [ 20 ] I am not satisfied that a finding of mental disorder on the part of an unsuccessful party would result in the successful party losing their entitlement to costs. Although a mental disorder might explain an unsuccessful party’s conduct, as between the parties, it would be unfair for the successful party (assuming no blameworthy conduct on their part) to bear the costs of the resulting behaviour.

Conclusion [ 21 ] I therefore conclude: 1. that Mr. C. is entitled to his taxable costs related to the preparation for and hearing of his application; 2. in relation to the disbursement charges of Ms. Chandler (in relation to the bilateral custody assessment) and Dr. Martin (in relation to the counselling of W. and K.), and the counselling costs of Dr. Haave (in relation to K.), Ms. W. will be responsible for 75% of such costs and Mr. C. will be responsible for 25%; and 3. in relation to any costs of Dr. Carter related to counselling of Ms. W. and/or Mr.

C., the parties will bear their own costs of any individual sessions and 50% each of the costs of any joint sessions. Heard on the 21 st day of October, 2011. Dated at the City of Edmonton, Alberta this 16 th day of February, 2012.

D.L. Shelley J.C.Q.B.A. Appearances: R.B. Hajduk for Ms. W. M.B. Tyson for Mr. C.