CAG v. SG, 2013 ABQB 12

Court of Queen ’ s Bench of Alberta Citation: CAG v. SG, 2013 ABQB 12 Date: 20130107 Docket: 4801 114904 Registry: Calgary Between: C.A.G. also known as C.A.R. Plaintiff - and - S.G. Defendant Corrected judgment: A corrigendum was issued on January 8 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C. M. Jones

_______________________________________________________ [ 1 ] This matter was brought before me on June 5, 2012. SG sought: 1. adjustment to his ongoing child support obligations in accordance with the provisions of the Federal Child Support Guidelines; 2. reduction in or termination of his spousal support obligations; 3. reduction in or termination of his child support arrears; 4. reduction in or termination of his spousal support arrears; and 5. cancellation of maintenance enforcement fees and penalties [ 2 ] CG opposed SG's application.

The Director of Maintenance Enforcement and Child Support Services ("Director") opposed some aspects of SG's application. Some of SG's arrears were owed to/subrogated to the Crown. [ 3 ] I issued Reasons for Judgment on September 21, 2012, pursuant to which I ordered as follows: 1. SG's ongoing

section 3 child support obligations, commencing September 1, 2012, were to be based on his line 150 income, reported in his annual T1 Tax and Information Return and as verified by his Notice of Assessment; 2. There was to be no imputation of additional income to SG at this time; 3. Payment of SG's child support arrears accrued to September 1, 2012 was stayed indefinitely, subject to leave hereby granted to SG and to CG to make application before this Court for variation of this direction, based on a further change in SG's circumstances; 4.

SG's ongoing spousal support obligations were, from and after the date of my decision, terminated; 5. Earlier orders of this Court regarding the payment of spousal support which have led to the accumulation of spousal support arrears are rescinded with the result that SG's spousal support arrears accrued to the date of my decision were extinguished; 6. SG's maintenance and enforcement fees and penalties were not cancelled. [ 4 ] In my Reasons for Judgment I directed the parties to make written submissions respecting costs.

In a letter dated October 2, 2012, the Director took no position with respect to the issue of costs between SG and CG. The Director suggested that no costs should be awarded against the Director, citing the decision in Budge v. Budge , 2010 ABQB 608 , in support of his position.

[ 5 ] A review of the reasoning in that case, and the cases discussed therein, suggests that when the Crown is a regular litigant, it pays costs like any other litigant. However, the Crown will not be characterized as a "regular litigant" when it is acting in a "child support environment to address the interests of the public and the children".

In that situation, only if there are special or unusual circumstances would it be appropriate to allow for the granting of costs against the Director. [ 6 ] In the matter before me, the Director sought to preserve its right to recover funds from SG arising in respect of its right of subrogation. [ 7 ] SG was self-represented. His submission respecting costs amounted to a request for reimbursement for costs associated with transportation to Calgary in connection with Court applications, postal and food costs.

In the aggregate, he sought $1,350.00. [ 8 ] CG represented herself in connection with her costs submission. She sought costs in the amount of $10,618.74, representing accounts for legal services she incurred in connection with the application before me on June 5, 2012, and an earlier application on February 23, 2012. [ 9 ] As a preliminary matter, fees, determined in accordance with Division 2 of

Schedule C of the Alberta Rules of Court ("Rules") would, as they relate to matters which do not involve a monetary amount, be determined in accordance with Column 1. Monetary amounts were in issue here given that the parties sought to address accumulated support arrears of $176,469.92. Here, however, the parties are not seeking costs computed in accordance with the various line item components of the columns under Division 2. Rather, each has simply specified a total amount in respect of which they seek reimbursement. [ 10 ] I have determined that each party should bear their own costs. In support of my decision I note the following:

i) SG was substantially successful in achieving his objectives. SG was successful in achieving objectives 1., 2. and 4. first mentioned above. He was unsuccessful in achieving objective 5. It remains to be seen if he was successful in achieving objective 3. No income was imputed to him for child support purposes; ii) 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; iii) However, Rule 10.29(

a) provides that the principle it enunciates is subject to the Court's discretion to award costs under Rule 10.31; iv) Rule 10.31 confers general discretion upon the Court to award costs, taking into account the factors specified in Rule 10.33;

v) 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. [emphasis added] [ 11 ] Taking these factors into account, I have concluded that SG could, in light of his medical condition, have asked to participate in the application before me by video link. Had he so participated, it would have been unnecessary for him to travel to Calgary.

I think he should bear the accommodation and food costs he incurred because I think they were avoidable. [ 12 ] Furthermore, CG's much greater cost outlays were incurred so that she might properly advance her argument that, inter alia , earlier Orders which denied SG's requests for extinguishment of support arrears were res judicata . This important issue had not been thoroughly canvassed in previous decisions.

SG advanced no argument which shed light on the point and, with reference to Rule 10.33(1) (g), I believe it is appropriate to recognize [CG's] contributions to the resolution of this issue by requiring SG to bear responsibility for his own costs. [ 13 ] Each of SG and CG shall bear their own costs. No costs shall be awarded in favour of or against the Director. Heard on the 5 th day of June, 2012. Dated at the City of Calgary, Alberta this 4 th day of January, 2013. C.M. Jones J.C.Q.B.A. Appearances: CG Self-Represented SG

Self-Represented _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice C. M. Jones _______________________________________________________ Please note changes have been made in the judgment with regards to paragraph 8 on page 3, and the Appearances on page 5. Please replace page 1 with the Corrigendum date and page 3 and 5 with the corrected pages. Paragraph 8 now reads CG represented herself in connection with her costs submission.

She sought costs in the amount of $10,618.74, representing accounts for legal services she incurred in connection with the application before me on June 5, 2012, and an earlier application on February 23, 2012. Appearances now read: CG Self-Represented SG Self-Represented