Czarnecki v. Malcolm, 2012 ABQB 404

Court of Queen ’ s Bench of Alberta Citation: Czarnecki v. Malcolm, 2012 ABQB 404 Date: 20120619 Docket: 4803 157925 Registry: Edmonton Between: Cory Todd Czarnecki Applicant - and - Sherry Dawn Malcolm Respondent _______________________________________________________ Memorandum of Decision re Costs of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Malcolm, who was successful in resisting an application to change the modalities of Christmas access, asks for accelerated costs. She claims that Dr. Czarnecki must have known that his application would fail and that he should be sanctioned for deliberately making such an application. [ 2 ] Ms. Malcolm is entitled only to party and party costs. [ 3 ] Costs are discretionary. However, unless special circumstances justify a departure from the general approach to the granting

[ 3 ] Costs are discretionary. However, unless special circumstances justify a departure from the general approach to the granting of costs, a court will follow the usual approach. The costs system approach to increases in the costs tariff is partly outlined in

Schedule C of the Rules of Court and partly developed in case law; such increases can be ordered, on the one hand, where the proceedings are complex and, on the other, where one party has behaved outrageously in the litigation. The application by Dr. Czarnecki does not engage either of these exceptions to the usual rule granting only party and party costs: his application was not complex and it does not constitute egregiously bad behaviour. [ 4 ] Although Ms.

Malcolm was not successful in her request for accelerated costs, overall, she achieved substantial success on the application, and is therefore entitled to tariff costs. 1. Background [ 5 ] In late September, 2011, following applications by the parties, this court made an order dealing with, inter alia , Christmas access. That access was to commence on December 16, 2011. Apparently dissatisfied with the modalities of access expressed in the order, Dr. Czarnecki initiated discussions with the respondent with a view to agreeing to change the court order from air travel to vehicle travel. Ms.

Malcolm declined to consent to any change to the existing order. Dr. Czarnecki did not appeal the September order and did not re-attend on the judge who made the September order to ask that judge to reconsider the order. Rather, Dr.

Czarnecki brought an application before this court to vary the September order one day prior to the scheduled commencement of Christmas access. [ 6 ] Relying on the law holding that a variation from an existing parenting order can only be justified if there is a material change in circumstances, no such material change having been identified, this court declined to vary the September order. [ 7 ] Ms. Malcolm then asked for accelerated costs, claiming that Dr.

Czarnecki should have known that his application would be denied and should have known better than to bring his application as late as the day prior to the commencement of Christmas access. 2. Entitlement to accelerated costs [ 8 ] The award of costs is discretionary; however, that discretion must be exercised judicially. In practice, this means that, generally, a judge will award costs according to standard approaches. There are two standard approaches to increasing the tariff of costs outlined in

Schedule C of the Rules of Court. The first is found in

Schedule C itself and states that, in complex chambers applications, where complexity is different from size of the claim, the court may direct a higher level of costs than the level provided in the tariff. The second approach is found in the case law which states that, in extraordinary circumstances, the court can award an indemnity of costs. [ 9 ] Here, Dr. Czarnecki ’ s application does not engage either of the cost approaches: as Ms.

Malcolm agrees, his application was not complex, and, his behaviour in bringing the application was not outrageous, or egregiously bad. [ 10 ] In coming to the conclusion that his application was not egregious, I note that, because Dr. Czarnecki ’ s application so clearly represented an impermissible collateral appeal of the September order, Ms. Malcolm would not have been put to any great effort to refute it. Having now tested the September order, if Dr.

Czarnecki were to again seek to vary that order without any material change of circumstances, such litigation conduct might be characterized as egregious in a way that his first attempt to vary the order could not be. The fact that Dr. Czarnecki brought his application so late did not inconvenience Ms. Malcolm: because the children were residing with the mother, the only person who might have been inconvenienced by the late application was Dr. Czarnecki himself since he might not have been able to commence the access awarded because of his failure to comply with the September order. [ 11 ] Ms.

Malcolm was successful in resisting Dr. Czarnecki ’ s application but unsuccessful in her own application for accelerated costs. Nonetheless, this is not a situation of divided success in which each party should bear their own costs of the application. Rather, Ms. Malcolm was substantially successful on the application since the core of the application was the modality of Christmas access rather than costs. [ 12 ] In the result, although Ms. Malcolm is entitled to the payment forthwith of the tariff fee for a contested chambers application, she is not entitled to any increase in that amount.

Heard on the 15 th day of December, 2011. Dated at the City of Edmonton, Alberta this 19 th day of June, 2012 . J.B. Veit J.C.Q.B.A. Appearances: Jennifer A. Galarneau, The Family Law Firm for Dr. Czarnecki Karin F. Schwab, Fraser Milner Casgrain LLP for Ms. Malcolm