Engler v. Engler, 2012 ABQB 558

Court of Queen ’ s Bench of Alberta Citation: Engler v. Engler, 2012 ABQB 558 Date: 20120910 Docket: 4803 153875 Registry: Edmonton Between: Warren Scott Engler Plaintiff/Respondent - and - Kimberly Anne Engler Defendant/Applicant _______________________________________________________ Memorandum of Decision (re Costs) of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Claiming that he was substantially successful in his recent chambers application, Mr. Engler now applies for costs of that application. Because of what she characterizes as divided success on the application, Ms. Engler contends that the appropriate costs order is one in which each party would bear their own costs. [ 2 ] On this application, there has been divided success: therefore each party should bear their own costs. [ 3 ] In calculating substantial success, it is not appropriate to parse each contested issue; rather, the court should consider inter- related issues as one issue.

Cases and authorities cited [4] By the Court: Engler v Engler 2012 ABQB 442; Doucette v Doucette Estate 2012 BCCA 235. 1. Background [5] The substantive decision which forms the basis for this costs application is cited above. 2. What is the definition of “substantial success” in the context of costs? [6] The parties agree on the principle that, where one party has enjoyed substantial litigation success, that party is typicallyentitled to costs whereas, where there has been divided success, typically each party should bear their own costs.

The issue on thisapplication is how the notion of “substantial success” should be defined. [7] There are, of course, many possible ways of measuring substantial litigation success for the purpose of awarding costs: onecould presume that decisions on issues involving parenting were more important than issues involving money, or, one could calculate theprice of the decisions where only money was involved, etc.

Although Alberta does not have the same legislative structure surroundingthe award of costs as does British Columbia, I endorse the approach taken recently by the British Columbia Court of Appeal in Doucette: 23 Many different paths are open to the Court in determining how to exercise its discretion in awarding costs. 24 The appellants consider this appeal to have involved two discrete issues. They urge this Court to weigh their relative importance inthe outcome of the appeal.

Although we would not articulate the argument in the same way, we tend to agree with the respondents thatthis appeal does not lend itself well to compartmentalization and is properly characterized as one interrelated whole. 25 This Court held that the trial judge erred in determining that the GICs formed part of Mrs. Doucette's estate; this was one of twomain issues on appeal. In accordance with Price v. Lypchuk Estate (1987), (BC CA), 11 B.C.L.R. (2d) 371 (C.A.), theCourt considered the fact that Mrs.

Doucette gifted the GICs to her children during her lifetime and weighed those gifts in the WVAanalysis, which was the second of two main issues on appeal. Thus, the disputed GICs played an integral role in resolving the appeal inits entirety. 26 At the heart of this litigation was the question of whether Mrs. Doucette's Will adequately provided for the proper maintenance andsupport of her children. The trial judge concluded that it had not and, in accordance with s. 2 of the WVA, ordered provisions he thoughtadequate, just, and equitable in the circumstances.

On appeal, this Court essentially agreed with the trial judge's conclusion that Mrs.Doucette did not justly and equitably provide for all of her children. The result on appeal approximates the apportionment the trial judgethought fair and equitable. 27 In our view, then, while the appellants achieved superficial success in winning on the issue of the ownership of the GICs, theoverall outcome of the trial remained largely unchanged on appeal.

This Court and the trial judge took different routes to reachsubstantially the same result. [8] In other words, where there are truly discrete issues, success on one must sometimes be weighed against success on theother. However, in family law litigation, as in other types of litigation, many apparently discrete issues are in fact inter-related.

3. In this case, has Mr. Ensler had substantial success, or has there been divided success? [ 9 ] Applying the overall approach to the award of costs articulated above, the court concludes that some of the separate issues that were contested on the hearing should be grouped for the assessment of costs. For example, the issue of whether income should be imputed to Ms. Engler is so inter-related with the overall issue of spousal support that success on imputation should not be accounted for as success on one issue. [ 10 ] At this hearing, there were four main issues: what is Mr.

Engler ’ s income for purposes of child and spousal support; is Ms. Engler entitled to spousal support; what is the best parenting scheme for the twins; should portions of Mr. Engler ’ s affidavits be redacted. On the first issue, Ms. Engler was successful in establishing that, on the material available to the court at this time, Mr.

Engler ‘ s income should be deemed to be the income which he has reported in the last year; there was, nonetheless, an acknowledgment that his income may have been dramatically reduced and that he should, of course, have the opportunity of establishing any such reduction at trial, and, if successful there, be compensated from the overall financial award made to Ms. Engler. On the issue of spousal support, Ms. Engler was successful in establishing that she was entitled to support, although in an amount less than what she requested and for a period shorter than the one she requested.

On the issue of the parenting regime, Mr. Engler was successful in establishing that the acceptance by the parents of the principle of shared parenting should apply to the twins and, in the circumstances here, that parenting regime was not only in the children ’ s best interests, but did not require any financial adjustment to the parents ’ financial regime. On the issue of the redaction of the affidavits, Ms. Engler was successful only in relation to one of the complaints she advanced. [ 11 ] As will be seen from this

summary of litigation success, although Ms. Engler was substantially successful on the issue of her husband ’ s guideline income at this time, Mr. Engler was substantially successful on the appropriate parenting regime for the children. Ms. Engler was only partially successful on each of the issues of spousal support and redaction of documents. [ 12 ] In

summary therefore, at the hearing there was divided success between the parties. Based on the general principles relating to the award of costs, because there was divided success, each party should bear their own costs of the application. 4. Costs of the costs hearing [ 13 ] Ms. Engler came to the costs hearing with the position that each of the litigants should bear their own costs of the litigation, and that is the conclusion which the court has reached. Therefore, Ms. Engler is entitled to the costs of the costs hearing. Heard on the 28 th day of August, 2012. Dated at the City of Edmonton, Alberta this 10 th day of September, 2012. J.B. Veit J.C.Q.B.A.

Appearances: Ms. Humaira Ahmad, Barr Picard for Mr. Engler Ellen S. Ticoll, Ticoll Andreiuk for Ms. Engler