Lane v. Lane, 2012 ABQB 21

Court of Queen ’ s Bench of Alberta Citation: Lane v. Lane, 2012 ABQB 21 Date: 20120113 Docket: 4801 128875 Registry: Calgary Between: Jacqueline Mae Lane Plaintiff - and - John Michael Lane Defendant _______________________________________________________ Memorandum of Decision on Costs of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Introduction [ 1 ] This is a

Part 10 Application pursuant to the Alberta Rules of Court and more specifically pursuant to Rule10.29(1). Issue [ 2 ] Is either party entitled to costs?

Law [3] In Lauzon v. Davey 2007 ABQB 121, Mr. Justice Gill of this Court said this at paragraph 4 through 6: 4. In Canada Deposit Insurance Corporation v. Canadian Commercial Bank, (AB KB), [1989] A.J. No. 29,Wachowich J. (as he then was) summarized the general rule as to costs: The basic general rule with respect to costs is that, in the absence of special circumstances, the successful party is entitled to costs.

M.Orkin in the The Law of Costs (1968) stated on pp. 19 - 20 that: The rule that a successful party is entitled to his costs is of long standing and should not be departed from except for very good reasons. Orkin went on to set out four exceptions to this general rule: 1. Misconduct of the parties; 2. Miscarriage in the procedure; 3. Oppressive and vexatious conduct of proceedings; and 4. Novelty or uncertainty of the issue to be decided. 5. Lieberman J.A. in Stewart v. Stewart (1982), 1982 ABCA 175 , 20 Alta.

L.R. (2d) 193 at p. 199 described the trialjudges' discretion in relation to costs: "Rule 600(1) of the Alberta Rules of Court confers wide discretion with respect to costs upon the trial judge. This discretion is notarbitrary; it must be exercised judicially and there must be some reason to deprive a successful litigant of costs." 6. In Cranwill v. James, (AB KB), [1995] A.W.L.D. 916, (sub nom. Cranwill v. James) 173 A.R. 376 costswere denied to a successful defendant doctor who although negligent escaped liability because causation was not proven. In the case ofthe four other defendant doctors Mr.

Justice Lomas found that they were not negligent and therefore there were no special circumstancesto justify departure from the rule that costs are to follow the event. Mr. Justice Lomas approved the following approach at para. 11: "In Orkin, The Law of Costs, 2nd ed. at p. 2-21, the author writes: The discretion of the court to deprive a successful litigant of his or her costs is a discretion which must be exercised judicially and uponproper material connected with the case, or having relation to the subject-matter of the action." Facts [4] Mr. and Mrs.

Lane were married in October of 1973 and ceased cohabitating in August of 2005. They were divorced by order of this Court on the 3rd day of October, 2008. They are the parents of grown children. The matter was before me for a three day

hearing regarding spousal support. [ 5 ] The Statement of Claim in this action was filed on August 8, 2006 by counsel representing Mrs. Lane. In the Statement of Claim and in an Affidavit sworn by Mrs. Lane, she alleges that Mr. Lane earns approximately $185,000 per year. In his Statement of Defence, Mr. Lane plead that his gross income was $184,000 per year plus any bonus. [ 6 ] Mr. Lane filed a Statutory Declaration on October 27, 2006. This Statutory Declaration has attached to it a

schedule “A” that was a complete list of his assets and liabilities. Shortly thereafter on December 18, 2006, Madam Justice Horner of this Court signed a Consent Spousal Support Interim Order stating “that the Defendant shall pay to the Plaintiff spousal support in the total sum of $5,000 per month ...”. [ 7 ] On May 9 th , 2008, a Consent Order severing corollary relief was filed by the parties and a consent matrimonial property Order was filed on the Order of Madam Justice C.L. Kenny settling all issues of matrimonial property between them. [ 8 ] On September 23, 2009, counsel for Mr.

Lane filed a Family Law Notice of Motion seeking to settle the terms for spousal support. The Application of Mr. Lane requested specifically “a review of the Consent Corollary Relief Variation Order granted by Madam Justice C.L. Kenny on the 9 th day of May, 2008 varying the amount of spousal support payable by the Defendant in an amount to be determined retroactive to May of 2008. [ 9 ] Nothing more appears to have happen on the Court file until January 31, 2011 when an Order of Mr.

Justice Hawco of this Court was filed directing: Upon the Application of the Defendant for advice and directions from the Case Management Justice G.C. Hawco ... it is ordered that this matter shall be set down for a viva voce special hearing to commence on Monday, June 13, 2011. [ 10 ] I heard the three days of evidence as directed by Mr. Justice Hawco. At the time of the hearing it was clear that Mr. Lane’s income was not a mystery and in 2010 his salary was $175,000 plus bonuses of approximately $100,000. I therefore set base spousal support at $5,000 per month (considering the opportunity Mrs.

Lane had for other income), consistent with the Consent Order signed earlier by Madam Justice Horner, and awarded Mrs. Lane 25% of Mr. Lane’s bonuses as additional spousal support. However, Mrs. Lane also made a significant claim against Mr. Lane with respect to unexercised warrants or option shares. This claim represented a significant and important part of her claim. Mrs. Lane was not successful on this claim. [ 11 ] This was a difficult litigation. Mr. Lane had two counsel and Mrs. Lane had three counsel represent her during the course of the action.

There were repeated requests for disclosure and duplication in the provision of documents. The parties developed a high level of angst, confrontation and dudgeon between them. Conclusion [ 12 ] On the whole of it and after hearing counsel and on a review of the file, I am satisfied that there has been mixed success. Neither party has demonstrated to me or satisfied me with respect to the burden of showing that they are entitled to costs in this action and therefore each party will bear their own. Heard on the 15 th day of December, 2011.

Dated at the City of Calgary, Alberta this 13 th day of January, 2012. W.P. Sullivan J.C.Q.B.A. Appearances: Lonny L. Balbi, QC for the Plaintiff Heather A. McGurk for the Defendant