TLM v. MGH, 2013 ABQB 14

Court of Queen ’ s Bench of Alberta Citation: TLM v. MGH, 2013 ABQB 14 Date: 20130108 Docket: 4801 130589 Registry: Calgary Between: TLM aka TLH Plaintiff - and - MGH Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision Regarding Costs of the Honourable Mr. Justice C.M. Jones _______________________________________________________

[ 1 ] This matter originally came before me on December 20, 2011 ( “ December 20th Application ” ). My oral decision was delivered on January 6, 2012. That decision ultimately resulted in an Order ( “ January 6th Order ” ). The December 20th Application involved a consolidation of applications by the Defendant ( “ MGH ” ) and a cross application by the Plaintiff ( “ TLM ” ). MGH ’ s Request [ 2 ] MGH sought an Order: (

a) defining the joint custodial decision making arrangements for the dependent child of the marriage, A, born March [...], 2004 to include the need for consensus of the parties or, with respect to major decisions in the area of non-emergency medical/dental care, education (including a change of schools), religion and scheduled extra-curricular activities; (

b) restricting A ’ s residence to the town of Cochrane and an area within a five mile radius of Cochrane; (

c) altering the current parenting arrangements with A such that MGH would have equal parenting time with A or, alternatively, that he have substantially more parenting time with A; (

d) prohibiting A from attending school other than at her current school in Cochrane; and (

e) making his child support payments subject to the Child Support Recalculation Program (the “ CSR Program ” ); TLM ’ s Requests [ 3 ] TLM sought an Order: (

a) striking third party affidavits filed by MGH on December 6, 2011 and December 7, 2011; (

b) requiring MGH to provide his three most recent pay stubs; (

c) seeking enforcement of the minutes of settlement between the parties; (

d) specifically incorporating the minutes of settlement between the parties in the Divorce Judgment and Corollary Relief Order granted by the Honourable Justice Hart on August 31, 2007 (the “ Hart Order ” ); or, in the alternative to appoint a parenting coordinator; and (

e) variation of the child support provisions of a Consent Variation and Corollary Relief Order granted by the Honourable Justice Strekaf on June 21, 2010 (the “ Strekaf Order ” ). [ 4 ] In the result:

1. MGH ’ s applications, referred to in (

a) through (

d) under “ MGH ’ s Requests ” were dismissed; 2. TLM ’ s applications, referred to in (

a) and (

b) under “ TLM ’ s Requests ” were dismissed; 3. TLM was permitted to pursue her proposed move of A to the Bearspaw area or northwest Calgary; 4. MGH remained at liberty to apply to this Court for an Order directing an assessment or bilateral custody assessment, pursuant to the (then) Court of Queen ’ s Bench of Alberta Family Law Practice Note “ 7 ” . Upon completion of such assessment, either party was at liberty to make further application to this Court in respect of a parenting and access regime; and 5. The Hart Order and the Strekaf Order were varied to: (

a) provide the parties with more specifically prescribed parenting of and access to A, on a regular basis, while preserving the “ majority time ” , “ minority time ” arrangements that existed at the time of the December 20th Application; (

b) delineate the parties ’ parenting and access privileges during Christmas, Spring Break, Mother ’ s Day and Father ’ s Day and summer holidays; (

c) delineate a protocol which addressed rights and obligations of each party in the event a party who enjoyed parenting time chose not to exercise it; (

d) direct the appointment of a parenting coordinator to assist the parties to expeditiously resolve issues which arise from ongoing parenting issues in a manner which is consistent with A ’ best interests and which attempts to minimize parental conflict; (

e) altered child support provisions of the Hart Order and the Strekaf Order to enable the parties to participate in the CSR Program and to ensure the production of material necessary to ensure proper application of that program to child support obligations. [ 5 ] I directed the parties to make submissions regarding costs. The parties differ regarding the relative success which they each achieved in light of my decision. [ 6 ] For her part, TLM asserts, inter alia , that: (

a) she achieved substantial success in the application before me and should therefore receive an award of costs. This assertion is based on (

i) the observation that four out of five of MGH ’ s requests were dismissed and only two out of five of TLM ’ s requests were dismissed and (ii) the issues in respect of which TLM could be said to have achieved success were the more significant issues as they relate to parenting of A; (

b) an additional appearance before me to set the terms of the January 6th Order resulting from my decision on January 6th, 2012 was unnecessary and reflected an attempt on MGH ’ s part to, in effect, re-argue the matters which had been put to me and upon which I had already made a decision in order that he might alter the terms of my final Order to his advantage; and (

c) double costs should be awarded against MGH in light of a proposed consent order ( “ Proposed Consent Order ” ) provided by her to MGH the day before the December 20th Application. She argues that although she “ did not meet or beat the terms of all points in her offer, she was successful on the most important points and achieved substantial success on most other points ” .

[ 7 ] She further asserts that she should receive costs in respect of an application heard before Mr. Justice Gates and which resulted in his Order of May 10, 2011 ( “ Gates Order ” ). That application, brought by MGH, resulted in his Lordship ’ s direction that all of MGH ’ s applications be rescheduled to be heard as a domestic special application (ultimately, the December 20th Application) and that A remain in her current school and reside where she currently resided until the matter was heard in a domestic special application. For his part, MGH ’ s asserts, inter alia , that: (

a) while his request for 50/50 parenting time was denied, he secured 6-7 additional weeks of parenting time per year, when my decision regarding summer access, Christmas, Spring Break, Mother ’ s Day and Father ’ s Day is taken into account; (

b) he achieved his objective of securing the Court ’ s direction that consensus be required for decisions on major issues and that I effectively granted his request for this direction by observing that joint custody arrangements such as this require consensus of the parties on major issues; and (

c) his request for amendment to earlier Orders of this Court to allow the parties to participate in the CSR Program was granted. [ 8 ] MGH asserts that the parties enjoyed mixed success and that each should be responsible for their own costs. [ 9 ] With respect to the Gates Order, MGH asserts that it should have been unnecessary for him to make the application resulting in the Gates Order because TLM should have consented to matters ultimately heard at the December 20th Application proceeding by way of a domestic special application and should have consented not to make any changes to A ’ s school or living arrangements prior to that application being heard. [ 10 ] In a submission regarding costs, there are innumerable ways to articulate, with the benefit of hindsight, the relief originally sought by each of the parties in order to enhance the prospects of being able to argue “ substantial success ” .

Counsel each submitted a form of Order which attempted to resolve in their clients favour any ambiguity which my oral decision may have created. [ 11 ] The form of Order submitted by counsel for TLM more closely resembled the final form of the January 6th Order, though I did not consider the efforts of counsel for MGH to be improper or disingenuous. [ 12 ] When it became obvious that counsel were not able to agree on the terms of my Order, I agreed to hear further submissions.

Having considered those submissions, I took the initiative to prepare my own form of Order (the January 6th Order) which, I believed, reflected my decision. [ 13 ] In preparing the January 6th Order, I took care to breakout the relief sought by MGH in his two applications (May 10, 2011 and November 22, 2011) and the relief sought by TLM in her application of November 23, 2011.

That effort produced the five heads of relief sought by MGH, as expressed in item 1. of the January 6th Order and the five heads of relief sought by TLM, as expressed in item 2. of the January 6th Order. [ 14 ] As noted above, four of MGH ’ s five requests for relief were dismissed and two of TLM ’ s five requests for relief were dismissed. Decision A. TLM ’ s request for double costs .

[ 15 ] Double costs are governed by Rule 4.29 of the Alberta Rules of Court ( “ Rules ” ). TLM would have me determine that the provisions of the Proposed Consent Order provided by her counsel to counsel for MGH the day before the December 20th Application constitute an offer and that my decision was more favourable to her than the terms of that offer. [ 16 ] Double costs are not appropriate in this circumstance.

The terms of the Proposed Consent Order were sufficiently different from the January 6th Order to prevent me from concluding that the results to TLM from the January 6th Order “ beat ” the terms of the Proposed Consent Order. [ 17 ] The terms of the January 6th Order reflected A ’ s best interests.

Having reviewed the Proposed Consent Order (not available to me at the time of the December 20th Application) I conclude that the terms of the January 6th Order modify the provisions of the Proposed Consent Order in ways which, while ultimately directed at A ’ s best interests, may objectively be viewed as supportive of TLM ’ s position in some instances and MGH ’ s position in others. B. Costs of the hearing before me to settle the terms of the January 6th Order [ 18 ] The parties will bear their own costs in connection with this hearing.

The hearing was necessary to clarify and settle the parameters of my decision of January 6th, as ultimately reflected in the January 6th Order. C. Costs of the Applications of May 10, 2011 and December 20, 2011 [ 19 ] TLM shall have her costs in respect of these two applications, computed in accordance with column 1 of Division 2 of

Schedule C of the Rules because: (

a) she enjoyed relatively more success than MGH in matters of fundamental importance to A ’ s welfare, those matters being where, geographically, A could live and whether or not MGH should enjoy 50/50 parenting or substantially more regular parenting time than he already enjoyed. (

b) 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. While it may be asserted that the terms of the January 6th Order reflect mixed success, on the substantive issues of where A may, geographically, live and who shall be the “ majority time parent ” , TLM was successful. (

c) Rule 10.29(

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

d) Rule 10.31 confers general discretion upon the Court to award costs, taking into account the factors specified in Rule 10.33; (

e) 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. [ 20 ] I have already indicated that I believe TLM was more successful than MGH with respect to issues directly affecting A ’ s day to day interests (as opposed to the convenience of the parties) [ 21 ] 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 any stage 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 defence 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. [ 22 ] I do not consider any of the above elements to be of particular significance in my decision regarding costs. Dated at the City of Calgary, Alberta this 8th day of January, 2013. C.M. Jones J.C.Q.B.A. Appearances: Dereck A. Jones Dunais McKay Harms & Jones

for the Plaintiff Elaine L. Lenz, Q.C. Soby Boyden Lenz for the Defendant