Munyua v Mbugua, 2012 ABQB 582

Court of Queen ’ s Bench of Alberta Citation: Munyua v Mbugua, 2012 ABQB 582 Date: 20120924 Docket: 4801 144421 Registry: Calgary Between: Ernest Munyua Plaintiff - and - Rita Mbugua Defendant _______________________________________________________ Memorandum of Decision Regarding Costs of the Honourable Mr. Justice C. M. Jones _______________________________________________________ [ 1 ] This matter involved a two day trial heard before me on June 25th and 26th, 2012. The Plaintiff sought: 1. divorce judgment; 2. joint custody of the child of the marriage ("T");

3. shared parenting; 4. child support, pursuant to the Federal Child Support Guidelines; and 5. equitable division of matrimonial property. [ 2 ] In her Statement of Defence and Counterclaim for Divorce and Division of Matrimonial Property, the Defendant sought: 1. divorce judgment; 2. sole custody of T; 3. specified access to the Plaintiff with T; 4. retroactive and ongoing child support in accordance with the Federal Child Support Guidelines; 5. an unequal division of matrimonial property; and 6. exclusive possession of the matrimonial home. [ 3 ] I gave the following directions: 1. divorce was granted; 2. custody of T remained with the Defendant with the Plaintiff having access as provided for in a Consent Order dated March 10, 2011; 3. the Defendant was awarded sole ownership of the matrimonial home; and 4. the provisions of the 2010 consent order dealing with ongoing child support and the provisions of the 2011 consent order dealing with discharge of arrears remain in effect, as far as minimum payments by the Plaintiff are concerned. [ 4 ] I invited the parties to make written submissions to me with respect to costs.

The Plaintiff provided no submissions. The Defendant's counsel provided a detailed submission, complete with a draft bill of costs and case citations. [ 5 ] The Defendant seeks a lump sum award of costs in the aggregate amount of $18,750.00. To assist the court in assessing the merits of that request, her counsel provided a draft bill of costs reflecting the following:

1. fees - $16,400.00 2. disbursements - $ 1,429.89 3. GST - $ 891.49 Total $18,721.38 [ 6 ] For purposes of constructing this draft bill of costs fees are computed in accordance with Column 3 of

Schedule C to the Alberta Rules of Court ("Rules"). The Defendant’s utilization of Column 3 is based on her observation that the value of the matrimonial home which, she successfully obtained by virtue of my judgement, being $360,000.00, would, if

Schedule C to the Rules applied, fall under column 3. She further cites the decision in Katrib v. Katrib , 2008 CarswellAlta 321 , as authority for the proposition that, if recourse to

Schedule C is appropriate in awarding costs, matters involving division of matrimonial property are to be treated like any other civil action. Restated, if the Court considers it appropriate to consider

Schedule C for purposes of awarding costs, the fact that division of matrimonial property might take place coincident with an application for divorce and corollary relief does not limit the Court's ability to look beyond the provisions of Column 1 and utilize a higher column. [ 7 ] I am prepared to grant the Defendant’s request for costs in the amount of $18,750.00. This award represents a lump sum award which I am permitted to make in accordance with Rule 10.31(b)(ii).

In arriving at this lump sum award, I am guided by the draft bill of costs provided by the Defendant's counsel which I find reasonable and which arrives at an aggregate amount which is virtually identical to the amount requested. It is constructed with specific reference to

Schedule C and particular amounts applicable to various items under Column 3. I am satisfied from my review of the history of this matter that the various line items in the draft bill of costs accurately reflect the many interlocutory appearances which the Defendant was required to initiate to move this matter forward. [ 8 ] In support of my decision I note the following:

i) the Defendant was substantially successful in her defence and counterclaim; ii) the Plaintiff was substantially unsuccessful in his claim; iii) Rule 10.29 provides, inter alia , that a successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party. By negative inference, an unsuccessful party (Munyua) should generally not expect to receive an award of costs against the successful party; iv) Rule 10.29(

a) provides that the principle it enunciates is subject to the Court's discretion to award costs under Rule 10.31;

v) Rule 10.31 confers general discretion upon the Court to award costs, taking into account the factors specified in Rule 10.33; vi) Rule 10.33(1) provides as follows: In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered;

(

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [ 9 ] Taking these factors into account and considering that fact that various prior consent orders to which the Plaintiff was a party resulted from applications advanced by the Defendant, reaffirms my belief that the Defendant's request for costs is entirely appropriate. [ 10 ] Rule 10.33(2) provides as follows: In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or anystage or step of the action; (

b) a party's denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party's defense from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. [ 11 ] With reference to items (

a) through (

g) I note that the Plaintiff: 1. failed to provide complete disclosure requested of him; 2. entered into two consent orders (retroactive and ongoing child support) which he did not comply with;

3. consented to this matter being scheduled for trial but failed to confirm trial dates thus leading to another application by the Defendant to set trial dates, an application in respect of which he had not paid the costs ordered; 4. did not attend for questioning scheduled through counsel; 5. did not file a brief in preparation for trial; and 6. did not provide counsel with any documentation upon which he intended to rely at trial. [ 12 ] To reaffirm, the Defendant is awarded costs in the amount of $18,750 payable forthwith.

She has requested that costs awarded be payable through the Maintenance Enforcement Program. Such a direction might be appropriate if costs were awarded specifically in respect of a maintenance issue. Here, however, the primary issue was division of matrimonial property and the Court was not provided with a breakdown of what proportion of costs should be allocated to the issue of maintenance. The Defendant’s request in that regard is declined. Dated at the City of Calgary, Alberta this 24th day of September, 2012. C. M. Jones J.C.Q.B.A. Appearances: Ernest Munyua, Self-represented Meghan M.

Hanson of Matkovic Allan LLP for the Defendant