Vervoorst v Parker, 2012 ABQB 217

Court of Queen ’ s Bench of Alberta Citation: Vervoorst v Parker, 2012 ABQB 217 Date: 20120402 Docket: FL03 26962 Registry: Edmonton Between: Sylvia Marie Vervoorst Applicant - and - Scott Brian Parker Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by the mother to take the one child of the relationship currently almost 5 years of age on a holiday to Disneyland during the week of April 23, 2012.

This matter has been ongoing for several months now. [ 2 ] The parties were in a relationship, and currently share parenting of their child equally. The planned vacation to Disneyland is from April 22 to May 1, 2012. The mother advised the father in October 2011 of her intentions of taking the child on this vacation and provided him with a copy of the Itinerary. Since that time the mother ’ s counsel prepared and sent over to the father ’ s lawyer the required Authorization to Travel.

[ 3 ] The father acknowledges in his Affidavit that the mother first informed him of her intention to take the child on vacation back on October 12, 2011 when she informed the father by writing a note to him in the Log Book that accompanies the child as she goes between residences. The father deposes that he responded to the mother ’ s request on October 13, 2011, by informing her that he would consent to the child ’ s travel and would attend at a Notary Public in due course.

The mother apparently then did not provide the Travel Authorization until January 7, 2012, at which point the father was very busy with work and could not immediately attend to signing the document. He also did not see any rush given that the child was not travelling until near the end of April 2012. [ 4 ] The father deposes that less than two weeks later in late January 2012, and without warning and inquiry, the Applicant mother involved the parties ’ lawyers.

The father takes the position that since it was the mother who decided to involve the lawyers in this matter, and since she is the one who is travelling with the child, the father does not see why he has to pay for his lawyer ’ s time and charges for seeing him. [ 5 ] The father also takes the view that the matter was further complicated by the mother ’ s lawyer because it demanded of his lawyer that he make “ immediate inquiries ” as to whether or not (the father) would sign the Travel Authorization, failing which an application to the Court to have it addressed would be made.

The father takes the position that given the Applicant ’ s position in this matter as expressed by her lawyer, it was impossible for his lawyer to deal with the matter without having to go through three transactions and charges. Specifically at an absolute minimum, the father submits that the fax from the mother ’ s lawyer would have to be received by his lawyer ’ s office, he would need to correspond with him to determine his position, he would need to

schedule an appointment, and the lawyer would need to send the Travel Authorization back – moreover the Applicant ’ s lawyer demanded an immediate response. The father also had to take time off work to attend at his lawyer ’ s office for execution.

The father estimates that his travel to and attendance at his lawyer ’ s office resulted in 2 ½ lost hours of work, as opposed to his signing of the document at a Notary Public ’ s office when it was convenient for him to do so, which would have resulted in no loss of work time. [ 6 ] The father also points out that when he married in Puerto Vallarta in 2011, he travelled to Mexico ahead of the child as the mother would not allow the child to travel with him.

The father wanted the child to be present at his wedding, and because the mother refused to agree to this, a trial with respect to the matter had to be held in Provincial Court. Although the trial never proceeded, the father submits that an excessive amount of funds were expended on legal fees until the mother finally relented a day or two before the trial date. The father argues that had the mother voluntarily signed Mexico the consent to travel, the parties ’ would have saved thousands of dollars in legal fees.

Currently notwithstanding his agreement to voluntarily sign the mother ’ s Travel Authorization, the father believes the mother creating a fiasco of the situation by refusing to pay for his lawyer ’ s fees. The father also points out that his lawyer did not add Disbursements to the amount requested from the Applicant.

Those disbursements including faxing and photocopying, as well as courier charges were never added to the lawyer ’ s account. [ 7 ] The mother takes the position that the father was informed in October 2011 more than six months before the proposed travel date of her intention to take the child to Disneyland, and given that her lawyer prepared the authorization to travel, she does not understand why the father is now demanding that she pay his lawyer $120, considering she paid her lawyer to prepare the document.

The mother argues that she should not have to pay the father additional monies just for his signature, and that this is just another hurdle that the father is making her go through for no reason. The mother is a full time student with limited funds, and she believes that the father is taking advantage of this situation, after having refused to provide her with the Travel Authorization for several months. [ 8 ] Counsel have also engaged in considerable correspondence over this matter.

A letter dated January 25, 2012 goes from the mother ’ s lawyer to the father ’ s lawyer which enclosed the Authorization to Travel.

That document is returned by the father ’ s lawyer to mother ’ s lawyer on February 17, 2012 on the “ explicit trust condition ” that the Consent and Authorization could not be released until such time as payment of $119.70 representing $114 for .6 hour for fees plus $5.70 GST be paid. [ 9 ] Prior to the February 17, 2012 explicit trust condition, counsel had already exchanged correspondence on February 1 and 2, 2012 with respect to the issue of possible charges for the Travel Authorization document.

Counsel for the father writes to counsel for the mother on February 1, 2012 indicating that the mother had agreed to cover the costs in this matter, and the father ’ s lawyer advised that based on his hourly rate of $190 he expected his time to be .5 or .6 of an hour. He then invites comment from the mother ’ s counsel with respect to this charge. The mother ’ s counsel responds promptly on February 2, 2012 pointing out that her client is not agreeing to pay these charges, and that the father had been asked by the mother several months ago to sign the document.

Counsel for the mother expressed surprise as to the costs being sought, considering that she had prepared the document. She enclosed another Travel Authorization as counsel had misspelled the mother ’ s name in the first document. [ 10 ] In response to the February 17, 2012 explicit trust condition letter, counsel for the mother immediately on the same day returned the Travel Authorization executed by the father, and indicated that she would be making her own application in Court to

dispense with his consent. Counsel for the mother indicated that her client would not “ be bullied into paying for ” a signature on a document that they had prepared.

The February 17, 2012 letters are important in that the February 2, 2012 letter from counsel for the mother was never received by counsel for the father even though it had apparently been faxed, so the February 17, 2012 letters are the first indication that there is a problem according to the father and his counsel with respect to the proposed charges. [ 11 ] On February 29, 2012 counsel for the father writes to counsel for the mother indicating that his instructions are that he will not remove the trust condition with respect to the Travel Authorization, and then on an unrelated note seeks to have the mother ’ s new partner provide a criminal records check for himself.

Counsel for the mother then responds that same day refusing to have a criminal records check done on the mother ’ s new partner, and indicating that she will be seeking costs against the father in her upcoming application to dispense with his consent to the Authorization to Travel. Conclusion [ 12 ] The application to dispense with the consent of the father, and the Authorization for the child to travel with the mother to Disneyland on April 22 to May 1, 2012 is granted by the Court.

With respect to the outstanding statement of account of $114 plus $5.70 GST, counsel for the mother seeks solicitor/client costs against the father for having to bring this application to dispense with the father ’ s consent in the circumstances. [ 13 ] I conclude that although it has been a common courtesy between counsel to execute documents without charge in circumstances such as this, this practice does not foreclose the possibility of counsel actually charging for their time to attend at the execution and notarization of an Authorization to Travel.

The time spent on this matter .6 of an hour based on an hourly rate of $190 is not in and of itself per se unreasonable. The father did delay in providing his Authorization to Travel since he was made aware of this on October 12, 2011. Given however that the travel dates were not until April 22, 2012, the father ’ s delay in having the document executed was not unreasonable.

As it turns out the original document in any event contained a misspelling with respect to the mother ’ s name such that the original document that was provided by counsel for the mother to counsel for the father was probably invalid in any event. [ 14 ] I conclude that the involvement by counsel for the mother, of counsel for the father, was not unreasonable in the circumstances by the time that occurred in January 2012.

Counsel for the father then wrote back to counsel for the mother on February 1, 2012 to indicate that an appointment had been scheduled for February 10, 2012 for the father to sign the Travel Authorization document and that there would be charges based on the lawyer ’ s involvement in the execution of the document.

What is most unfortunate in this case is that the letter dated February 2, 2012 in response from counsel for the mother objecting to these charges was apparently never received by counsel for the father, so that the dispute over the account does not become apparent until the explicit trust condition is imposed several weeks later, which eventually leads to this Court application.

Had the February 2, 2012 letter actually been received by counsel for the father, the majority of his statement of account might not have been required, although the Court application would still have been required. [ 15 ] Given that I cannot fault counsel for the father for his apparent non-receipt of the mother ’ s objection letter to the account, and given that I cannot prevent counsel for the father for charging for is services in what appears to be a reasonable manner, I certainly cannot impose enhanced costs on counsel for the father or his client given that they are not guilty of any specific wrongdoing. [ 16 ] As for party and party costs for this application to dispense with the father ’ s consent, given all of the circumstances it was not unreasonable for the mother to be concerned with the lack of progress in this case, although most of the delay appears to have been in hindsight predicated on a general mis-communication.

Therefore I will award party and party costs to the mother for this application given her success in the application.

Heard on the 27 th day of March, 2012. Dated at the City of Edmonton, Alberta this 2 nd day of April, 2012. Donald Lee J.C.Q.B.A. Appearances: Collista Coles Barr Picard for the Applicant James R.A. Samaroden Gordon Zwaenepoel for the Respondent