Hayden v. Hayden, 2013 ABQB 115

Court of Queen ’ s Bench of Alberta Citation: Hayden v. Hayden, 2013 ABQB 115 Date: 20130221 Docket: 4803 149310 Registry: Edmonton Between: Tracy Alan Hayden Plaintiff - and - Rosarie Marie Hayden Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This matter was heard by me originally in Special Family Law Chambers on November 22, 2011, and a written decision was issued on November 24, 2011.

Each of the parties then advised me in their letters in October 2012 that they had been unable to agree on a form of order following my November 24, 2011 Reasons. In response to counsel ’ s letters written in October 2012, I issued a further Memorandum of Decision in this matter on November 29, 2012, and I signed the ultimate order. I also granted the parties leave to argues costs within 60 days because even though I had decided costs in my first decision, Ms. McNeilly on behalf of Ms.

Hayden indicated that there were some matters that I had never been made aware of that were relevant to the issue of costs. [ 2 ] This decision deals with the issue of costs after having now received submissions from counsel, Ms. Reeves, on December

21, 2012, and from Ms. McNeilly on February 15, 2013. [ 3 ] On the issue of costs counsel have now advised me that prior to my November 24, 2011 decision, on April 21, 2011 the mother had offered to settle with the father paying her $12,000.00. The final effect of my ultimate order in this matter arising from my November 30, 2012 decision was that the mother was owed $791.00. Ms.

McNeilly advises that the father has never paid child support for the two years prior to the application being originally heard by me in November 2011, nor has he paid any child support since my November 29, 2012 Memorandum of Decision was released. [ 4 ] At the time of the November 22, 2011 application, there was no court order for parenting or support, only a separation agreement signed in October 2007. The father had stopped paying the child support agreed to in that separation agreement, so it appears that the mother had no alternative but to bring an application.

The father had also lost his very lucrative position as a golf pro, and had decided to return to school. During this time the mother was earning more than the father, but by September 2011 the father was earning more than $90,000 per year in his new job. [ 5 ] Both parties now seek their costs for these applications in the approximate sum of $2,000.00 plus disbursements. The mother argues that she was substantially successful with respect to her application.

However I conclude that it was the father who achieved more success in the end result with respect to the application, and it was that father who beat two offers to settle by the mother. [ 6 ] It is correct though that because the father consistently refused to pay any child support for a number of years, the matter had to be determined. Further I agree that it was necessary for the mother to obtain an Order that she was entitled to claim the child related benefits with respect to the children of the marriage for tax purposes, and I ultimately granted such an order.

In earlier years the father had apparently filed his tax return claiming his entitlement to that benefit, which had resulted in a reassessment against the mother. [ 7 ] Accordingly although I conclude that the father was more successful in the application, the mother I conclude also had no choice but to bring the application to determine the issues of parenting and child support which had only been agreed to as part of the separation agreement.

The father had resiled from that agreement since his position was that he had shared parenting since 2010, which was not a determination that I ultimately made. [ 8 ] Finally I conclude that it is not appropriate in these circumstances, nor is it in the best interest of the child, to award costs against the mother notwithstanding the ultimate success of the father, in what I considered to be a somewhat complex application to unravel and to determine. [ 9 ] Therefore I have concluded that each party will be responsible for their own costs in connection with these applications.

Heard on the 15 th day of February, 2013. Dated at the City of Edmonton, Alberta this 20 th day of February, 2013. Donald Lee J.C.Q.B.A.

Appearances: Michelle Reeves Attia Reeves Tensfeldt for the Plaintiff Shirley A. McNeilly, Q.C. Emery Jamieson LLP for the Defendant