JSA v. GE, 2012 ABQB 58

Court of Queen ’ s Bench of Alberta Citation: JSA v. GE, 2012 ABQB 58 Date: 20120123 Docket: FL03 27102, AD03 48799 Registry: Edmonton

Action No. FL03 27102 In the Matter of the Family Law Act ,

Chapter F-4 .5, S.A. 2003, And In The Matter of Guardianship and Custody of the infant child MLA Between: JSA and CTB Applicants - and - GE and CE Respondents And Between: Court File No. AD03 48799 In the Matter of the Child, Youth and Family Enhancement Act ,

Chapter C-12 , R.S.A. 2000, s. 64 And In the Matter of the Application By RGE and CME Petitioners For an Adoption Order in Respect of the infant Child MLA _______________________________________________________

Costs Decision of the Honourable Mr. Justice Dennis R.G. Thomas _______________________________________________________ 1. Introduction................................................................................................................ Page: 2 2. The Positions of the Parties......................................................................................... Page: 3 A. The Adoptive Parents...................................................................................... Page: 3 B. The Birth Parents.............................................................................................

Page: 3 3. Analysis...................................................................................................................... Page: 4 4. Conclusion.................................................................................................................. Page: 7 1. Introduction [ 1 ] On June 28, 2011 I approved the contested adoption by RGE and CME [the “Adoptive Parents”] of the infant MLA [the “Child”], then eight months old. That adoption had been opposed by JSA and CTB [the “Birth Parents”], who sought custody of the Child.

I concluded that both the Adoptive Parents and the Birth Parents were good candidates as caregivers for the Child. My decision focussed primarily on the bond that had evolved between the Adoptive Parents and the Child during the period they were together. [ 2 ] Following my oral judgment I invited the parties to make written submissions in the event they were unable to resolve the post-trial question of costs.

This decision responds to those submissions. [ 3 ] The Birth Parents do not dispute the bill of costs proposed by the Adoptive Parents and they acknowledge that the Adoptive Parents were entirely successful at trial. There is no suggestion of improper intentions, delay, or misconduct by either side prior to or during the trial process. All persons involved acted honestly and in the best interests of the Child.

The Birth Parents do not dispute that they have the resources to pay the court costs of the successful parties. [ 4 ] The sole remaining issue in dispute is whether, as a general principle of law, a disputed adoption is not a proceeding that should involve an award of costs in favour of the successful party. 2. The Positions of the Parties A. The Adoptive Parents [ 5 ] The Adoptive Parents observe that the Alberta Rules Of Court , Alta.

Reg. 124/2010 [the “ Rules ”, or individually a “ Rule ”] indicate that as a general principle a successful party is entitled to court costs from the unsuccessful party or parties ( Rule , 10.29(1)), except where directed otherwise by a court ( Rule , 10.31) applying the factors set out in Rule , 10.33. In the recent decision of Paniccia Estate v. Toal , 2012 ABQB 11 , Shelley, J. concluded at para. 115 that the Rules general purpose and intention provisions, Rule 1.2, are also relevant when considering an award of costs.

[6] The Alberta statutes governing adoption (Family Law Act, S.A. 2003, c. F-4.5 and Child, Youth and Family EnhancementAct, R.S.A. 2000, c. C-12) do not provide any specific rules or principles applicable to an award of costs in a contested adoption. [7] The reasoning of Justice Côté in Metz v. Weisgerber, 2004 ABCA 151, 243 D.L.R. (4th) 220 provides the lynchpin of theargument of the Adoptive Parents. In that decision an unsuccessful party to a custody dispute argued no cost award was warranted as amatter of principle.

Justice Côté conducted a detailed review of potential policy bases for a rule that costs are not warranted whereparents dispute custody of a child (paras. 18-46) and concluded: [47] There is no presumption against costs awards in custody cases. In custody cases, R. 601(1) and its enumerated factors, includingresults, should be fully weighed, as should any other legally relevant factors present in the particular case. That means that costs usuallyfollow the event.

The topic of costs is discretionary, as it is in civil cases generally. [Emphasis added.] [8] The Adoptive Parents argue that a disputed adoption should be treated in an analogous manner. B. The Birth Parents [9] The Birth Parents neither dispute the Adoptive Parents’

interpretation of the relevant legislation, nor their

interpretation ofMetz v. Weisgerber. [10] That said, the Birth Parents argue that an honest and misconduct free adoption proceeding is not a court action where anaward of costs is appropriate. They note that in these circumstances a compromise or settlement was not possible. Further, the BirthParents observe that in certain previous instances courts have declined to order costs against an unsuccessful party to an adoption: Meyerv. Haynes; D.J.M. v. S.D.H. (1984) 1984 ABCA 189 , 54 A.R. 288 (Alta. C.A.) B.L.C. v. B.J.W. (1997), (AB KB), 29 R.F.L. (4th) 175 (Alta.

Q.B.); RE Adoption 29191; RE Adoption 29192 (1977), (AB KB), 5 A.R. 313,Alta. L.R. (2d) 135 (Alta. Dist. Ct.). These earlier decisions seem to contradict the general principle expressed by Côté, J. in Metz v.Weisgerber. 3. Analysis [11] The main issue for me to decide is whether the general costs principle in Metz v. Weisgerber should apply equally in adoptionand custody disputes. The general principle expressed in Metz v. Weisgerber has been applied in Alberta courts to other family lawcontexts including child and spousal support and matrimonial property division: Wallat v.

Marshall, 2005 ABQB 773 at paras. 7-8, 385A.R. 28; F.D.R. v. M.D.P., 2006 ABQB 202 at paras. 112-115, 25 E.T.R. (3d) 103; Katrib v. Katrib, 2008 ABQB 162 at para. 9, 90Alta. L.R. (4th) 59. In S.B. v. J.F., 2009 ABQB 553 at paras. 33-34, 73 R.F.L. (6th) 383 costs were awarded to a successful party in adispute over guardianship. However, no reported post-Metz v. Weisgerber decision appears to involve adoption. [12] Further, the pre-Metz v. Weisgerber Alberta case-law on adoption costs is inconsistent. For example, RE K.(M.L.); RE K.(J.R.G.) (1989), (AB KB), 99 A.R. 155, 22 R.F.L. (3d) 450 (Alta. Q.B.) and Steele v.

Brum (1981), 35 A.R. 255, 12A.C.W.S. (2d) 498 (Alta. Q.B.) have opposite conclusions on whether a costs award should flow from an unsuccessful application todispense with a father’s consent to adoption. Neither judge explains why. [13] There does not seem to be a policy basis to distinguish child custody and adoption. As with all litigation involving childrenwhen either custody or adoption is disputed, the interests of the child must provide the central consideration driving a court’s analysisand conclusion. The same is true when a court considers whether a person should be a child’s guardian: S.B. v.

J.F., at paras. 29-32. [14] But the child’s best interests are not necessarily the driving cause for litigation that involves a child. At paras. 21-23 JusticeCôté in Metz v. Weisgerber concludes that while a court decides child custody on the basis of what is best for a child, that does not meanthe parents’ disagreement and resulting court proceedings are conducted for the interest of that child. Parents litigate custody for theirown subjective purposes and reasons: para. 22. In that sense, good intention and conduct is not a basis to refuse to award costs: para. 25.

[15] That would seem to counter the argument advanced by the Birth Parents. Further, in Metz v. Weisgerber at para. 17 there isdiscussion of a brief and earlier Alberta Court of Appeal decision, Henry v. Pham (1987), 1987 ABCA 200 , 81 A.R. 276, 55Alta. L.R. (2d) 227 (Alta. C.A.). Henry v. Pham was a contested adoption where no costs were awarded in favour of the successful birthparents. The trial decision does not appear to have been reported but some of the circumstances described in the Court of Appeal decisionparallel the circumstances present here.

In that case, the birth mother initially gave the child up for adoption, but subsequently and withthe birth father sought return of the adopted child. The unsuccessful adoptive parents were ordered to pay costs. [16] The Court of Appeal judgment indicates the birth parents may not have operated from a common basis and that coercion wasinvolved: The trial judge did not give any reasons for his cost award. The failure to discuss the question of costs is particularly troubling in thelight of the fact that the parents were separately represented at trial and costs were given to each.

The parents presented a unitedapproach so far as the guardians were concerned, whatever factors may have led to separate representation as between themselves.Moreover, there were suggestions of "pressure" on the mother which were clearly not brought home to the guardians. We are told therewas some discussion in chambers about costs. The father's counsel, in his factum, refers to economic oppression as having beenmentioned. The evidence and findings do not support that suggestion.

Counsel also suggested that the guardians had a greater ability topay - a factor which we do not see as relevant in a case of this kind. [17] Stevenson J.A. concluded no cost award was appropriate, as: We think it significant that the guardians were maintaining a consent order, and, on the judgment, were genuinely seeking a judicialdetermination of what was in the best interest of the child. ... No party can be said to have improperly or unnecessarily invoked the court.Nor was there a question of success, having regard to the real issue - the child's welfare.

It was a case that had to be heard. [Emphasisadded.] [18] The manner in which Henry v. Pham is discussed in Metz v. Weisgerber is interesting. At para. 18 Justice Côté concludedthat no binding authority sets out how costs are addressed in a custody dispute. At para. 17 Henry v. Pham is rejected as relevant to thatquestion: [17] So one must see if there is any binding precedent on point. The research by counsel and ourselves has turned up only thefollowing binding decisions. (

a) Henry v. Pham (1987) 1987 ABCA 200 , 81 A.R. 276, 55 Alta. L.R. (2d) 227, 10 R.F.L. (3d) 418 (C.A.). This was aguardianship/adoption revocation case. It contains no general rule about costs in custody cases. It had unusual facts. [Emphasis added.] [19] This passage is relevant for three reasons: 1. the court in Metz v. Weisgerber was live to the potential application of a rule on costs in both custody and adoption disputes; 2. Henry v. Pham is an atypical situation for costs, and therefore its result may also be atypical; and 3. the court in Metz v.

Weisgerber did not consider itself bound by the result in Henry v. Pham. [20] It is also interesting to see the manner in which Henry v. Pham was subsequently challenged by courts and academiccommentators as providing a general ‘no fault’ rule for costs in a family law context, see for example Groenveld v. Groenveld, 2003

ABQB 281 at paras. 12-20 , 332 A.R. 397; B.L.H. v. S.B.H. , 2004 ABQB 537 at paras. 9-18 , 368 A.R. 100. I conclude that progression crystalized in Metz v. Weisgerber . [ 21 ] I see no basis to distinguish an adoption from any other proceeding that fundamentally affects which adult or adults will direct the life of a child. The same general principles should drive cost awards in a adoption proceedings in the same way as custody ( Metz v. Weisgerber ) or guardianship ( S.B. v. J.F. ) disputes. [ 22 ] As a consequence I generally reject the position advanced by the Birth Parents.

There are no special circumstances here that would justify me in refusing to order costs per Rule 10.29(1). My conclusion is reinforced by the analysis in Brill v. Brill; B. (R.) v. B. (E.) , 2010 ABCA 358 , 87 R.F.L. (6th) 254 where the court did not order costs against an unsuccessful party in a custody dispute. That result did not flow from the ‘worthiness’ or ‘sincerity’ of the unsuccessful parent but rather because an award of costs would not be in the interests of the children involved : para. 14.

The unsuccessful litigant had limited finances and a cost award would have restricted his ability to arrange for parent-child access: paras. 13-14. It was that potential loss of contact that warranted departure from the usual Metz v. Weisgerber result. [ 23 ] I therefore conclude that in the absence of misconduct, delay, or other criteria identified in Rules , 1.2 and 11.33 I should not depart from the rule in Metz v. Weisgerber except where a costs award would have deleterious consequences to the Child. The Adoptive Parents say they intend to include the Birth Parents in the Child ’ s life.

I see no reason why an award of costs would interfere with that worthy objective given the Birth Parents ’ financial state. 4. Conclusion [ 24 ] The Birth Parents are ordered to pay the Adoptive Parents the costs amount of $14,396.18, as well as $1,500.00 for this costs application. Heard on the basis of written submissions filed with the Court on the 21 st day of September and the 11 th day of October, 2011. Dated at the City of Edmonton, Alberta this 23 rd day of January, 2012. D.R.G. Thomas J.C.Q.B.A. Appearances: Christopher A. Jackson Jackson Law for the Petitioners/Respondents

Len Thom Thom Law Office for the Applicants