Durocher v. Klementovich, 2012 ABQB 726

Court of Queen ’ s Bench of Alberta Citation: Durocher v. Klementovich, 2012 ABQB 726 Date: 20121127 Docket: 4803 154516 Registry: Edmonton Between: Loraine Agnes Durocher Plaintiff - and - Darrell Nicholas Klementovich Defendant _______________________________________________________ Reasons for Costs Decision of the Honourable Madam Justice D.C. Read _______________________________________________________ [ 1 ] The marital relationship between the parties failed and they entered into a separation agreement.

However, they remained in conflict particularly with respect to access and decision making for their two children, child support, and whether a solicitor/client costs provision in their agreement had been triggered. [ 2 ] Ultimately they dealt with their continuing differences at a three day trial, at the conclusion of which I reached the conclusion that the solicitor/client costs provision in their agreement was not triggered by the events which had transpired since the agreement was signed. I then invited the parties to make representations respecting costs on a party/party basis.

[ 3 ] Both parties had also made offers to settle under the Rules of Court. [ 4 ] In addition, during the course of case management, the case management justice had ordered on a without prejudice basis a payment by the Defendant to the Plaintiff of an amount of $10,000 in legal fees ( “ Interim Fee Order ” ), to be adjusted at the end of trial.

On the evidence, this amount has not actually been paid but, at the direction of the case management justice, had been added to the parties ’ Maintenance Enforcement Program account where it is subject to collection in the same manner as arrears of child support. [ 5 ] The following deals only with the issues of costs and adjustment to the Interim Fee Order. [ 6 ] I have reviewed the offer made by the Plaintiff, undated but slated to expire on November 19, 2012 and both the Offer to Settle made by Defendant and filed September 7, 2012 and the “ Counter-offer to Settle ” made by the Defendant and filed October 22, 2012. [ 7 ] Both offers related to all issues before me and in neither offer was the party making the offer completely successful in what they requested.

For example, the Plaintiff ’ s offer included a requirement for the Defendant to pay a further $20,000 of the Plaintiff ’ s legal costs as well as the $10,000 already ordered on an interim basis. The Defendant ’ s offer filed September 7, 2012 required a review of access every six months.

The Defendant ’ s offer filed October 22, 2012 provided that there would be no further costs payable against the Defendant as well as requiring that the $10,000 in costs ordered against the Defendant be struck. [ 8 ] Their litigation has resulted in a judgment that is not equal to or more favourable to either as required for double costs to become payable pursuant to R. 4.29. [ 9 ] However, some party/party costs should be payable here. Success at trial was mixed.

However, it is evident from a review of their offers as well as considering their positions during the trial, that the Defendant has been more successful than was the Plaintiff in the result. Their dispute has been long, protracted and bitterly contested. At least some of their difficulties were caused by the fact that the Defendant father was self-represented. Although he conducted himself in an exemplary fashion before me, it is evident from the court file that he has not always conducted himself well and that the proceedings were more protracted as a consequence.

The matter had to be managed by a case management judge to get it to trial and this resulted in much increased legal costs to the Plaintiff who was represented throughout. [ 10 ] Having considered the factors set out in R. 10.33, therefore, and notwithstanding his ultimate success, I conclude that it would be appropriate here for the Defendant to pay some of the Plaintiff ’ s costs of trial and I set this amount at $5,000.

This amount may be collected from the Defendant in the same fashion as if it was child support. [ 11 ] I direct that the Maintenance Enforcement Program account for these parties be varied so that the $10,000 legal cost added to the account in June 2012 is removed and substituted with the legal costs of $5,000 ordered here. [ 12 ] In addition, the parties will share equally and pay the bill of costs of counsel for the children. Heard on the 19 th to 21 st day of November, 2012. Dated at the City of Edmonton, Alberta this 26 th day of November, 2012.

D.C. Read J.C.Q.B.A. Appearances: Jasmine S. Chu Long Family Law Group for the Plaintiff Darrell N. Klementovich appeared on his own behalf Kathleen S. V. Linton Linton Law Office appeared for the children