AL v CC, 2012 ABQB 165

Court of Queen ’ s Bench of Alberta Citation: AL v CC, 2012 ABQB 165 Date: 20120307 Docket: FL03 30271 Registry: Edmonton Between: AL Applicant - and - CC Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment In the Costs Application of the Honourable Mr. Justice Donald Lee _______________________________________________________ History of the Matter

[1] The Applicant in this matter, AL(hereinafter the "mother"), filed the application that originated this matter on July 26,2011. The mother applied to move two of her children, from W[...], Alberta to S[...] Alberta, to live with her new boyfriend. ResponseAffidavits were filed by the Respondent to the Applicant's first Affidavit and to a Request for Written Interrogatories. [2] On August 5, 2011, the Respondent's counsel forwarded correspondence to the Applicant's counsel advising that: a. Ms.

AL would not be successful in her application because of the Father's involvement with the children and the children'sattachment to both the Father and W[...]; b. Ms.

AL would not be successful in her application because of the Minutes of Settlement entered into on May 9, 2009 andparagraph 3.1 of that Agreement which stated that: Both the FATHER and MOTHER have discussed the effect of one party moving the Children away from one of the parents andremaining in the same Town and school and have agreed that it is in the Children's best interests that the Children shall remain in theTown of W[...] until the Children have graduated from High School. [3] The mother was warned in that correspondence that the father would be seeking costs if the mother proceeded with herapplication and was unsuccessful.

The mother was put on notice that there was an Agreement and that the father would be seeking to relyupon and uphold that Agreement. [4] The father again tried to put the mother on notice that he would be claiming costs when he forwarded an Offer ofSettlement on December 1, 2011. [5] Between December 5th and December 8th, 2011, inclusive, the mother’s application was heard by me in a viva voceSpecial Chamber's Hearing.

A total of 9 witnesses were called, including an expert witness in the matter of parenting assessment, Mr.Tony Blenham. [6] At the conclusion of the Hearing, I sought and received written and rebuttal submissions from both parties. Briefs weresubmitted by both parties on December 16th , 2011 and the rebuttal briefs were submitted on December 20th , 2011. [7] In written Reasons dated December 30, 2011, now reported at 2011 ABQB 819 I concluded that whether I applied the "bestinterest's test" in Miglin as set out in Hearn v. Hearn, 2004 ABQB 75 , [2004] A.J. No. 105 (Alta.

Q.B.) or the s. 18(2) bestinterest's test of the Family Law Act, they both resulted in a finding that the children would be allowed to remain in W[...] with theirfather.

I also found that the mother had not shown a material change in circumstances that was not foreseeable between when the mothersigned the Agreement in May of 2009 and when she advised the father that she was not keeping the Agreement in February 2011.Further at para. 205 of the Reasons for Judgment, I found that:– . . .the Mother has provided no compelling argument as to why the Second Agreement's consensus with respect [to] the best interests ofthe Children and the mobility should not be upheld, as she has not shown any changes that were not foreseeable at the time she signedthe Agreement, nor has she shown any reason that this Court should invalidate paragraph 3.1 of the Agreement. [8] I went further to find that if the mother moved, the father was granted the day-to-day care and parenting of the children.

Mydecision was not appealed, and the mother has notified the father that she is taking the rest of her children and moving to S[...], Albertaon February 29, 2012.

Is the Respondent Entitled to Costs for the Steps Taken to Enforce the Agreement Pursuant to Paragraph 16 of the Agreement? [ 9 ] The Agreement provided at paragraph 16 that: – Each party agrees to indemnify the other for any and all costs associated with the requirement to enforce the terms of the within Agreement against the other, including all legal costs on a solicitor and client basis. [ 10 ] In Brown v. Silvera , [2010] A.J.

No. 375 (Alta O.B.) , the Court discussed several different kinds of costs at para. 8 as follows: – Generally there are three categories of costs: 1. solicitor and own client/indemnity costs which allow for a complete indemnification of legal fees and other costs for the successful party, 2. solicitor-client costs which allow for the recovery of reasonable fees which are not necessarily equivalent to a full indemnity costs, and 3. party-party costs which are the general rule and are departed from in rare and exceptional circumstances. [ 11 ] In this situation, it is suggested that paragraph 16 of the Agreement was a hybrid of numbers one and two.

Although the paragraph indicated "solicitor-client costs", it made clear reference to "each party" agreeing to "indemnify" the other for all costs associated with the enforcement of the Agreement. [ 12 ] In Brown , Silvera's counsel had entered into a contingency retainer agreement with the client whereby the lawyer would receive 25% of the judgment. Twenty five percent of the judgment amount came to roughly $3,773,944.69.

This amount would not necessarily be equivalent to Silvera's counsel's regular hourly solicitor fees, which is why this amount was covered by "solicitor and own client indemnity costs". [ 13 ] In the present agreement between the father and his counsel, the father will pay Ms. Crerar's hourly fee of $250 for her services. [ 14 ] Ms. Crerar's fees to reply to the mother's application with an Affidavit, enter into a Consent Order setting this down for Trial, answer Written Interrogatories and to draft three briefs, as well as attendance at Court for four (4) days came to: – a.

August 3, 2011 - August 29, 2011: $2,521.00; b. September 21, 2011 - December 22, 2011: $30,430.75; c. February 22, 2012 Disbursement account - expert costs and photocopying: $580.66;

d. Anticipated Final Account: $1,825 (Review decision, drafting Judgment, and drafting cost's brief); Total: $35,357.41. [15] It is also noted that the father's solicitor apparently wrote off $1,286.89 of her articling student's time that had been spent onthis matter. [16] In Brown, the Court was clear in stating that costs need not be pled in order for the costs to be claimed as long as the otherparty had effective notice. The Court stated at paragraphs 22, 24 and 25 that:– Alberta Permit Pro makes it clear that it is effective notice that is required for solicitor-client costs, rather than formal pleadings.

InBrown v. Silvera, a number of factors indicate that effective or fair notice was in fact given to Brown. The contract containing theindemnification provision was drafted by Brown's counsel on his instructions and signed by both parties who received legal advice fromtheir lawyers. As well.

Brown himself is an experienced businessman who is expected to have a good understanding of the contractualagreement. [Emphasis mine] As there is no indication that Brown did not have effective notice, one must conclude that Silvera may rely on the indemnificationprovisions without pleading the contractual clause in making her claim for solicitor-client costs on a contractual basis. The clause in the Minutes applies and will be enforced. On this basis, I award Silvera solicitor and own client costs. [17] In Foreman v. Foreman, 2005 ABQB 343 (Alta.

Q.B.), Justice Slatter in a Special Chambers context without viva voceevidence discussed enforcement clauses in such as we have in our Minutes of Settlement at paragraph 34 as follows:– While this application is in form an application by the Defendant to vary the Minutes of Settlement and the divorce judgment, in effectthe Plaintiff has been forced to come to court to seek enforcement of the agreement reached between the parties. [18] It is submitted since the relevant portions of the Separation Agreement was upheld at Trial, the costs

section should alsoapply. [19] It is submitted that the father is entitled to be indemnified for the reasonable solicitor client costs he incurred in trying toenforce the Minutes of Settlement. It is further submitted that the onus is on the mother to rebut the father's entitlement toindemnification of his solicitor client costs that he has incurred in enforcing paragraph 3.1 in the Agreement. Should the Father receive solicitor client costs of this Application pursuant to the Agreement, should the costs' be doubled? [20] Our recent Court of Appeal decision of Mahe v. Boulianne, 2010 ABCA 74 , [2010] A.J.

No. 238 (Alta. C.A.)indicates that an offer does not have to comply with the formal requirements in the Rules of Court. The Court stated:– The respondents also argue that the offer of settlement made no reference to the Rules of Court, nor to the effect that a refusal of the offerwould have on costs. The Rules of Court do not specify that any particular form of offer is required to trigger its costs consequences, andan offer need not make reference to costs. The parties are presumed to know the law, including the provisions of the Rules of Court.

Inany event, even informal offers that arguably do not comply with the Rules can have an effect on costs: Fullowka v. Royal Oak VenturesInc., 2008 NWTCA 9, [20081 12 W.W.R. 60, 437 A.R. 390 at paras. 23-5. While informal offers do not restrict the court's discretionover costs, they are nevertheless a relevant consideration. The appellant made a generous offer that exceeded his eventual liability, and

he is entitled to double costs of the appeal after the offer was made. [ 21 ] The mother was aware that the father would be seeking costs if she did not withdraw her claim. Further, the correspondence of August 5, 2011 alluded to a formal Offer and the formal Offer was provided in time for the mother to accept it. It is submitted that these are all factors that would lead that Court to order double costs. The father submits that the Offer to Settle of August 5th, 2011 had two effects in relation to determining an award for costs: – a.

It confirmed effective notice on the Mother that she was at risk to be liable for a cost's judgment against her if she was unsuccessful at Trial; and b. Pursuant to Rule 4.29 of the Alberta Rules of Court, it would be open to this Court to order that the solicitor-client costs award be doubled for all events after August 5th, 2011. [ 22 ] By serving the Formal Offer, although it was late, the conclusion of there being effective notice is buttressed.

It would be difficult to suggest that the mother did not know proceeding into the hearing that a cost's award against her was a potential outcome of the hearing. [ 23 ] The Court in Brown did just this in ordering a second set of solicitor client costs in addition to the solicitor and own client costs based on Silvera's counsel's hourly rate and number of hours invested. However it is acknowledged that there was reprehensible conduct on the part of Mr. Brown that was simply not present in this case.

Would the Father Be Entitled to Enhanced Costs or Solicitor Client Costs or Double Costs Pursuant to the Rules of Court [ 24 ] It is submitted that an enforcement clause such as the one found in paragraph 16 of the Agreement is not a requirement for enhanced costs in this type of application. This was held by Slatter J., (as he then was), in Foreman at paragraph 34 : – While this application is in form an application by the Defendant to vary the Minutes of Settlement and the divorce judgment, in effect the Plaintiff has been forced to come to court to seek enforcement of the agreement reached between the parties.

Even absent the solicitor and client costs clause in the agreement, the Plaintiff would be entitled to costs as the successful party, and enhanced costs because of the Defendant's attempt to re-litigate issues that have only recently been settled . [Emphasis added] [ 25 ] In this matter, the Agreement was signed on May 8th , 2009. By February, 2011, the mother was already seeking to reverse the covenant in the Agreement and have the children moved to S[...].

This was a gap of less than 2 years, which falls squarely into the area of "enhanced costs" that Slatter J. referred to above. [ 26 ] Rule 10.33 of the Alberta Rules of Court reads: – Court considerations in making costs award 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. [ 27 ] The Courts in the past have also gone on further to describe how custody cases should draw costs in the same manner as other litigation. [ 28 ] In Metz v. Weisgerber , 2004 ABCA 151 , the Court discussed whether costs could or should be awarded in custody cases. Our Court of Appeal held at paragraph 18 that: – ... the preceding paragraphs show that no legal authority compels this court to treat costs differently in custody cases than in other cases. Nor does the legislation say otherwise. Indeed, the legislation seems to say to treat them the same. Typically, that would mean that costs go to the successful party.

[29] Further, the Court found at paragraph 30 of Metz that:– Strong public policy reasons militate in favour of awarding costs in custody cases in accordance with the usual Rules. [30] Although the Court does have discretion with respect to costs, Metz goes on to describe that there are limits to thatdiscretion:– Though costs are discretionary, there are limits to the discretion. Costs cannot be awarded or withheld on legally irrelevant grounds, suchas sympathy, wealth, or dislike of proper conduct. And a judge exercising a discretion must similarly give some weight to all the legallyrelevant factors.

So lithe ordinary rules of costs should be followed unless the circumstances justify a different approach": Min. ofForests v. Okanagan I.B. 2003 SCC 71 , [2003] 3 S.C.R. 371, [2004] 2 W.W.R. 252, 273, 313 N.R. 84, [2003] S.C.J. No. 76,2003 SCC 71 (para. 22). Costs cannot be withheld to give the loser a consolation prize. [31] Further in Metz, the Court of Appeal discussed five different factors that led to the Court finding that costs should be paid incustody matters.

It is submitted that the second of those factors is particularly relevant in this matter:– Second, not awarding costs in custody cases in accordance with the Rules would deter meritorious litigants and encourage theunmeritorious ones. It is often objected that in all types of litigation, any chance of paying costs will deter a few timid but meritoriouslitigants from suing or defending. That may be. But where litigants act rationally, any prospect of winning and getting no costs will detera much larger number of meritorious parents (or other litigants) from suing or defending.

That is only logical, as academics and judgeshave rigorously demonstrated: Shavell (1982) 11 J. Leg. Stud. 55; Posner, Economic Analysis of Law, s. s. 21.4, 21.7, 21.8.3 (2d ed.1977) (pp. 434-41, 445-7, 450-53), or s. s. 21.5, 21.8, 21.9 end (5th ed. 1998) (pp. 607-15, 620-23, 627-32). We deter meritoriouspositions where we rarely if ever award costs. Those studies show that costs awards give a much heavier weight to who will likely win,in pre-trial calculations of whether to sue or settle.

The only way to deter unmeritorious litigation is the prospect of paying costs. [32] Although the father is entitled to normal Court costs as set out in the attached Second Bill of Costs, it is submitted that thiswill not begin to make a dent in the father's actual legal bill. The father testified in Court that he had paid upwards of $60,000 in legalfees to that date to try and resolve these matters without going to Court.

It is submitted that because the mother decided to relitigatematters, the father should be awarded a second set of costs. [33] The father submits that the Court has the discretion to award the father four different kinds of costs in the followingamounts:– (

a) Indemnification for solicitor-client costs incurred in enforcing the Agreement: Total: $35,357.41; (

b) Double indemnification given the offer of August 5, 2011: Total: $70,714.42; (

c) Double, solicitor and/or enhanced costs pursuant to the Rules of Court: Total: $17,424.18; and/or (

d) Costs pursuant to the Rules of Court: Total: $8,712.09.

Summary of the Mother’s Position on Costs A. The mother concedes that the father was the successful litigant in the application brought forward by the Applicant and istherefore entitled to costs. B. The mother concedes that it would be appropriate for the her to pay the father’s costs in accordance with the father’s Bill of CostsPursuant to

Schedule C, Column 1 in the amount of $8,712.09. C. The mother disputes that the father is entitled to solicitor-client costs, enhanced costs or double costs. [34] The mother agrees with the father’s account of the history of the application with the following exceptions andclarifications:– A. The mother did not advise the father in February 2011 that she was not keeping the Agreement; she initially “floated” thepossibility of her moving with the children to S[...] to determine if he might be prepared to agree to the move. Neither party had beenstrictly following the Agreement.

The father admitted at trial to the following breaches of the Agreement: (1) he admitted to baptizingone of the children without the mother’s consent in contravention of paragraph 2.7 of the Agreement; (2) he admitted that he had a friendlook after the children on at least one occasion without providing the mother with the first opportunity to do so in contravention ofparagraph 2.11 of the Agreement; and (3) he refused to pay the mother the sum of $4000 by May 8 as he was required to do pursuant toparagraph 4.5 of the Agreement.

When the father refused to agree to the mother removing the children to S[...], the mother did notengage in self-help by removing the children without his consent, but appropriately brought an application before the Court to determinethe issue. B. Although the mother was warned that the father would be seeking costs of the application and would be seeking to rely upon anduphold the Agreement, the mother was not advised that the father would be seeking solicitor-client costs. C. Written Interrogatories were to be conducted at the request of the father.

However, the father never did provide WrittenInterrogatories to be answered. In requesting Written Interrogatories and then not following through with them, the father unnecessarilyadded to the cost of litigation. Conclusion [35] The application was brought pursuant to the Family Law Act of Alberta. It was not an application brought by the father toenforce the terms of an Agreement. The mother did not remove the children from W[...] in contravention of the Agreement, she merelysought the Court’s permission to do so. [36] This was a decision about what was in the children’s best interests.

It was not a decision about whether or not to enforce aparticular term of an agreement. Pursuant to

section 18 of the Family Law Act, the best interests of the children is a matter for the Court,not the parties, to decide. The existence of an Agreement dealing with custody issues does not remove the Court’s obligation to considerthe best interests of the children, although it changed the appropriate test to be applied in determining their best interests in the newcircumstances. [37] In Hearn v.

Hearn 2004 ABQB 75 , 2004 ABQB 75, the Court held that the Miglin test should be applied so thatthe court “is directed to examine the agreement to see if it is consistent with the overall objectives and values in the Act. … If theagreement is not consistent with the best interests of the children, for example because it gives the interests of the parents priority overthose of the children, it will fail at both levels of the Miglin test.”

[38] It would not have been possible for the Court to make a decision regarding the best interests of the children without hearingthe application. It was not the mother who insisted on a viva voce hearing, rather once it was evident that there would be directlyconflicting Affidavits, the mother consented to a viva voce hearing of the application. [39] The validity of the whole of the Agreement was not put in issue, only the relevance of the mobility clause in that Agreementwhich was itself conditional on what would be in the best interests of the children.

The decision was based on the Court’s findingregarding the best interests of the children in the context of a situation where the parents had reached a prior Agreement it was not afinding regarding the enforceability of the term of an agreement. [40] The Miglin test is a judicial test, not a test the parties may agree to have apply in a written agreement. The Agreement saysthe Parties think it would be best for the children to stay living in W[...] if one parent decides to move. That is not the kind of term thatby its nature lends to court ordered enforcement.

The Court should and must be free to substitute its own opinion. Where and with whoma child resides is always a matter reviewable by the court. Any parent, acting out of honest and sincere concern for his or her child(ren)should be able to bring an issue before the courts free of the threat of being punished unduly.

To characterize an application to the Courtfor relief from the terms of an Agreement as a breach of the Agreement which would subject the mother to the risk of solicitor-clientcosts would have a “freezing effect” that would not promote the interests of justice. [41] There are situations where, nothwithstanding the existence of a mobility clause similar to paragraph 16 of the parties’Agreement, the Court will determine that it would be in the best interests of the children to permit one of the parents to relocate with thechildren. [42] Solicitor-client costs were not awarded in Foreman v.

Foreman cited by the father. The father has not provided any caseswhere the Miglin test was applied and solicitor-client costs awarded. [43] Under the present circumstances I conclude that paragraph 16 of the Agreement does not apply so as to trigger solicitor-clientcosts in a mobility application. Double Costs [44] In order for a settlement offer to satisfy the purpose of the compromise rules and justify a double costs sanction, it must be agenuine offer and remain open for acceptance: Petro-Canada Products Inc. v.

Dresser-Rand Canada Inc. 2004 ABCA 282 ,(2004), 33 Alta L.R. (4th) 197 (C.A.), 2004 ABCA 282 as referenced in Allen (Next Friend of) v. Mueller, 2006 ABCA 101 atparagraph 13. The Court says at paragraph 16:– An offer of settlement that does not realistically reflect the relative merit of the parties’ positions at the time it is made is not a genuineoffer. It is one made without any reasonable expectation that it will be accepted and for the sole purpose of invoking the double costssanction: Kerr v. Kerr 2001 ABCA 152 , (2000), 293 A.R. 384 (C.A.), 2001 ABCA 152.

Such an offers is merely a no-risklitigation strategy or tactic. If such an offer were held to justify a double costs penalty if not accepted, a litigant with a bona fideperception of the facts or the law, or both, different than that of his adversary could only pursue the matter to trial or appeal at anunjustifiable financial risk, thus potentially impeding the access of deserving litigants to the courts and aggravating the inherentadvantage enjoyed by litigants with the deepest pockets. [45] The father’s offer to settle was not a genuine offer as it did not include any element of compromise.

For example, it did notinclude any proposals that would assist the mother in meeting the needs of her family without moving to S[...] or any proposal to assistwith driving the children to S[...] in the event that the mother moved without the children. There was nothing to be gained by the motherin accepting the offer. The offer did nothing to promote settlement. [46] The father’s “Formal Offer to Settle” was only made open for acceptance for a period of one day.

Solicitor-Client or Enhanced Costs [47] The appropriate case for granting solicitor-client costs was considered in Katrib v. Katrib (2008 ABQB) 162:– The court may award party and party costs on a solicitor and client basis where one party has engaged in significant wrong-doing.McLachlin J., as she then was, in Young v. Young, (SCC), [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193 described theconditions that warrant this kind of award: Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of oneof the parties.

As with punitive damages, this is a high standard. Stevenson & Cote, Civil Procedure Encyclopedia, (2003, Juriliber, Edmonton)provides a broad review of instances where awards have been made of party and party costs on a solicitor and client basis. Examplesinclude where parties forged documents, were systematically dishonest, engaged in needless or hopeless litigation, engaged in obstructivedelays and practices, breached orders or undertakings, and made unfounded allegations. [48] Solicitor and client costs were also considered in: Daved v.

Daved, 2010 ABQB 696 at paragraph 34-35 as follows:– [34] In Brown at para. 31, Moen J. provided the following

summary of the points made by Graesser J. in College of Physicians andSurgeons of the Province of Alberta v. J.H., 2009 ABQB 48 , 2009 ABQB 48 at paras. 4-23, 468 A.R. 101 in regard to theawarding of solicitor-client costs on the basis of party misconduct: · Solicitor-client costs are awarded where the conduct of a party has been 'reprehensible, scandalous or outrageous': Walsh v. MobilOil Canada, 2008 ABCA 268 , 2008 ABCA 268 at para. 112, 440 A.R. 199; Hamilton v. Open Window Bakery Ltd., 2004 SCC9 , 2004 SCC 9 at para. 26, 2004 SCC 9 , [2004] 1 S.C.R. 303; Young v.

Young, (SCC), [1993] 4S.C.R. 3 at 134, 108 D.L.R. (4th) 193; · The conduct must have occurred during the course of the litigation: Polar Ice Express Inc. v.

Arctic Glacier Inc., 2009 ABCA 20, 2009 ABCA 20 at para. 21, 446 A.R. 295; · Solicitor and client costs might suffice to satisfy the objectives of deterrence and punishment that would otherwise be served by apunitive damage award: Colborne Capital Corp. v. 542775 Alberta Ltd., 1999 ABCA 14 , 1999 ABCA 14 at para. 294, 228A.R. 201; College of Physicians at para. 39; · In order for costs to be awarded on an indemnity basis or solicitor-client basis, as opposed to a party-party basis, the court mustconclude that the case fits within the parameters of a rare and exceptional or unusual case: Jackson v.

Trimac Industries Ltd. (1993), (AB KB), 138 A.R. 161, 8 Alta. L.R. (3d) 403 (Alta. Q.B.), costs orders affirmed 1994 ABCA 199 , 20 Alta.L.R. (3d) 117, 155 A.R. 42 (Alta. C.A.); · It is a well-established principle that the court may sanction a party by way of costs where allegations of morally reprehensibleconduct by such party are proven to be groundless by the trier of fact; whether to award increased costs in such situations is a matter ofdiscretion to be exercised judicially by the trial judge: Davis v. 850015 Alberta Ltd., 2003 ABPC 68 , 2003 ABPC 68 at para.33, 335 A.R. 172, citing Zwicker v.

Schubert; Harach v. Schubert, 1999 SKQB 49 , 1999 SKQB 49 at para. 54, 184 Sask.R. 35;and

· Misconduct during the litigation can surely be found if there is no reasonable basis on which to commence, or continue, litigation:College of Physicians at para. 33. [35] In Jackson v. Trimac Industries Ltd. (1993), (AB KB), 138 A.R. 161 at paras. 28-37 (Q.B.), Hutchinson J.detailed the rare and exception circumstances when solicitor and own client costs should be granted: 1. circumstances constituting blameworthiness in the conduct of the litigation by that party [Reese v. Alberta (1992), (AB KB), 133 A.R. 127, 5 Alta.

L.R. (3d) 40 (Q.B.)]; 2. cases in which justice can only be done by a complete indemnification for costs [Foulis v. Robinson (1978), (ON CA), 21 O.R. (2d) 769, 92 D.L.R. (3d) 134 (C.A.)]; 3. where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issueof fact or law which required these lengthy, expensive proceedings, where the positively misconducting party was "contemptuous" of theaggrieved party in forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his [Max Sonnenberg Inc.v.

Stewart, Smith (Canada) Ltd. (AB QB), (1987), 48 Alta. L.R. (2d) 367, [1987] 2 W.W.R. 75 (Q.B.)]; 4. an attempt to deceive the court and defeat justice, an attempt to delay, deceive and defeat justice, a requirement imposed on theplaintiff to prove facts that should have been admitted, thus prolonging the trial, unnecessary adjournments, concealing materialdocuments from the plaintiffs and failing to produce material documents in a timely fashion [Olson v. New Home Certification Programof Alberta (AB QB), (1986), 69 A.R. 356, 44 Alta.

L.R. (2d) 207 (Q.B.)]; 5. where the defendants were guilty of positive misconduct, where others should be deterred from like conduct and the defendantsshould be penalized beyond the ordinary order of costs [Dusik v. Newton (BC SC), (1984), 51 B.C.L.R. 217 (S.C.),varied on other grounds (BC CA), (1985), 62 B.C.L.R. 1 (C.A.)]; 6. defendants found to be acting fraudulently and in breach of trust [Davis v. Davis (1981), (MB KB), 9 Man. R.(2d) 236 (Q.B.)]; 7. the defendants' fraudulent conduct in inducing a breach of contract and in presenting a deceptive statement of accounts to thecourt at trial [Kepic v.

Tecumseh Road Builders reflex, (1987), 23 O.A.C. 72, 18 C.C.E.L. 218 (C.A.)]; 8. fraudulent conduct [Sturrock v. Ancona Petroleums Ltd. (1990), (AB KB), 111 A.R. 86, 75 Alta. L.R. (2d)216 (Q.B.)]; 9. an attempt to delay or hinder proceedings, an attempt to deceive or defeat justice, fraud or untrue or scandalous charges [PharandSki Corp. v. Alberta (1991), (AB KB), 122 A.R. 81 (Q.B.)]. [49] In this particular case, there was a compelling issue that needed to be heard. The mother’s proposed move to S[...] was goingto have significant impact on the children.

The mother’s move is a change in circumstances and it was fair for her to request a fresh lookat the best interests of the children. The mother took appropriate steps in bringing an application pursuant to the Family Law Act. Themother consented to the father’s proposal that the matter be heard with viva voce evidence. There were no unnecessary steps. The requestfor written interrogatories was made at the father’s suggestion and were provided within the timelines requested by the father. There wasno undue delay or positive misconduct on the part of the mother.

[ 50 ] If costs are doubled or if solicitor-client costs are awarded, the mother would be punished for acting honestly and sincerely in requesting a decision regarding the children who will always be affected where there is a need for one parent to move. The mother ’ s reasons for moving were legitimate and clearly bettered her personal and financial circumstances. Disposition [ 51 ] In

summary I conclude that there is no compelling reason for any order of costs other than party and party costs pursuant to

Schedule C, Column 1 of $8,712.09. Written Submissions Provided on the 29 th day of February, 2012 and the 2 nd day of March, 2012. Dated at the City of Edmonton, Alberta this 7 th day of March, 2012. Donald Lee J.C.Q.B.A. Appearances: Nora K. LeBlanc Gaffney & McGreer LLP for the Mother Jordan Crerar Crerar Law for the Father