DBF v. BF, 2013 ABQB 16

Court of Queen ’ s Bench of Alberta Citation: DBF v. BF, 2013 ABQB 16 Date: 20130108 Docket: 4801 145426 Registry: Calgary Between: D. B. F. Plaintiff - and - B. F. Defendant _______________________________________________________ Memorandum of Decision Regarding Costs of the Honourable Mr. Justice C. M. Jones _______________________________________________________ I. Background [ 1 ] This matter originally came before me on January 20, 2012 ("January 20th Application"). B.F. sought an Order directing:

a) a shared parenting arrangement such that each of the parties would have their daughter, T live with them 50% of the time;

b) should this Court decline to order a 50/50 Arrangement, more parenting time than he has under the current interim order;

c) equal (50/50) sharing of parenting time during all school and statutory holidays; and

d) that consensus of the parties be required for major decisions that need to be made for their daughter in the areas of non-emergency medical/dental care, education (including change in schools), religion and extra-curricular activities. [ 2 ] Argument at the January 20th Application left me with inadequate information upon which to make a decision which would be in T’s best interests. I directed that a Family Law Practice Note 7 Intervention be conducted.

The specific question I directed be answered was set out in my Order, filed on February 15, 2012 and was, to my satisfaction, answered in a report issued by Glenda Lux, Registered Psychologist ("Lux Report"). [ 3 ] In Reasons for Judgment issued on August 16, 2012, I directed as follows:

a) beginning September 4, 2012, T’s parents shall implement a shared parenting arrangement such that each of the parties would have T live with them 50% of the time;

b) consistent with the recommendations in the Lux Report, parenting shall change on Friday (after school during the school year and at 5:00 p.m. during the summer holidays);

c) such an arrangement shall include equal (50/50) sharing of parenting time during all school and statutory holidays;

d) the parent who does not have parenting responsibilities during a particular week (the “off duty” parent, to quote the Lux Report) shall have a mid-week supper visit; and

e) the parties shall retain joint custody of T, which already requires the consensus of the parties for major decisions affecting their daughter in the areas of non-emergency medical/dental care, education (including change in schools), religion and extra-curricular activities. I made no further order in regard to decision making. [ 4 ] I directed the parties to provide written submissions to me within thirty days of my judgment regarding costs, including the costs of the Lux Report. II.

Submissions of the Parties Regarding Costs B.F. submits that: 1. he should have costs awarded to him in respect of the January 20th Application because he was entirely successful; 2. costs should be computed in accordance with Column 2 of Division 2,

Schedule C of the Alberta Rules of Court ("Rules"); 3. costs thus computed would yield fees of $1,875.00 when applied in respect of item 8(1) of Column 2; and

4. cost of the Lux Report in the amount of $3,100.00 should be shared equally between the parties. [ 5 ] B.F. had advanced funds to pay for the Lux Report and, in his costs submission, was prepared, on the assumption that the parties share the cost of the Lux Report equally, to have reimbursement for his share of these costs addressed at the time matrimonial property is divided between the parties. [ 6 ] D.B.F. submits that: 1. no costs should be awarded against either party; 2. in the alternative, costs be "in the cause"; 3. in the further alternative that if costs are awarded against D.B.F., they be computed in accordance with Column 1 (and not Column 2), yielding fees of $1,500.00; 4. costs of the Lux Report be allocated between the parties on a proportionate basis as a

section 7 expense, noting that D.B.F. has no income or financial resources other than the child and spousal support she receives; and 5. costs of the Lux Report thus allocated be paid out of the parties' respective shares of matrimonial property when it is eventually divided. III. Discussion A. Costs of the January 20 th Application [ 7 ] I think it appropriate to award costs in favour of B.F. in respect of this Application, computed in accordance with Column 1 of Division 2,

Schedule C of the Rules because:

i) he was successful in securing the relief he sought; 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. Note, however, that Rule 10.29 (

a) provides that the principle it enunciates is subject to the Court's discretion to award costs under Rule 10.31; iii) Rule 10.31 confers general discretion upon the Court to award costs, taking into account the factors specified in Rule 10.33; iv) 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. I have already indicated that B.F. was successful in obtaining the relief which he sought. A consideration of (

a) through (

g) does not suggest any departure from the notion that a successful party should be entitled to costs. Similarly, it does not suggest departure from the principle articulated in the Commentary in the Rules applicable to the choice of applicable Column, where it is noted that: Unless the Court otherwise orders, matters which have no monetary amounts, for example, injunctions, will be dealt with under Column 1. The January 20th Application did not involve a monetary amount. In his costs submission, B.F. did not elaborate on why he believed Column 2, as opposed to Column 1, should apply in this case.

While I am at liberty to depart from Column 1, I see no reason to do so. Accordingly, I agree with D.B.F. that Column 1 is the applicable Column.

v) 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 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. I do not consider any of the above elements to be of particular significance in my decision regarding costs. B. The Lux Report I think responsibility for the costs of the Lux Report should be borne equally by the parties. The notion of equal responsibility underlies the primary commitment which the parties share, and will continue to share for some time, that being responsibility for the growth, development and welfare of their daughter. The Lux Report helped me to better assess how to respond to their conflicting views in respect of this shared commitment.

It is logical that they share this cost equally. IV. Direction 1. B.F. will have his costs computed in accordance with column 1 of Division 2,

Schedule C of the Rules; 2. Costs thus computed will be paid from D.B.F.'s share of matrimonial property otherwise determined when such a determination is ultimately made and distribution of the parties' respective shares is implemented; 3. The cost of the Lux Report shall be shared equally between the parties, with B.F. to be reimbursed for D.B.F.'s share of such costs which he has advanced, from D.B.F.'s share of matrimonial property otherwise determined when such a determination is ultimately made and distribution of the parties' respective shares is implemented; and 4.

No interest shall be paid to B.F. in respect of amounts referred to in 3. reimbursement of which is deferred in accordance with this direction. Dated at the City of Calgary, Alberta this 8th day of January, 2013.

C. M. Jones J.C.Q.B.A. Appearances: Janet E. Russel, Q. C. For the Plaintiff Elaine L. Lenz, Q. C. For the Defendant