McMurray v Garth, 2013 ABQB 282

Court of Queen ’ s Bench of Alberta Citation: McMurray v Garth, 2013 ABQB 282 Date: 20130509 Docket: 4801 150294 Registry: Calgary Between: James Richard McMurray Plaintiff (Defendant by Counterclaim) - and - Kathryn Lisbeth Garth also known as Kathryn Lisbeth McMurray also known as Kathyrn Lisbeth Garth also known as Kathyrn Lisbeth McMurray Defendant (Plaintiff by Counterclaim) Corrected judgment: A corrigendum was issued on May 24, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice C. M. Jones _______________________________________________________

[1] At a case management meeting on March 5, 2013, counsel for Ms. Garth sought an award of costs, asserting that Mr. McMurray's lack of diligence in responding to undertakings had caused her to incur unnecessary costs. Having received submissions from both counsel I undertook to review the Court file and notify the parties of my decision with respect to Ms. Garth's request for costs. [2] The following chronology provides background: 1 . Mr. McMurray was Questioned on May 7, 2012. 2 . On July 5, 2012, Justice S.M. Bensler of this Court ordered, inter alia , that Mr.

McMurray provide complete and responsive replies to undertakings given by him at Questioning on May 7, 2012. He was to provide those replies no later than the close of business on August 15, 2012. Costs of that application were granted "in the cause". 3 . Responses to undertakings were provided to counsel for Ms. Garth on August 8, 2012. 4 . Counsel for Ms. Garth found those responses to be incomplete and notified counsel for Mr. McMurray to that effect by letter dated August 8, 2012. 5 . At our first case management meeting on September 4, 2012, Ms. Garth asserted that Mr.

McMurray had failed to provide complete and responsive replies to his undertakings. I undertook to review a considerable volume of material provided by Ms. Garth's counsel to determine if inadequacies in Mr. McMurray's replies persisted. . 6 . By subsequent letter dated November 9, 2012, I directed counsel for Ms. Garth to provide me and counsel for Mr. McMurray with a written outline of deficiencies in Mr. McMurray's responses to undertaking which she believed continued to exist based on undertaking materials which she was able to provide to me. In that letter, I directed that counsel for Mr.

McMurray provide a written response to that outline. I directed that written submissions were to be provided to me not later than November 26, 2012, in anticipation of our next case management meeting on November 29, 2012. 7 . In response to my direction, I received a detailed and very helpful

summary dated November 17, 2012 prepared by counsel for Ms. Garth. That

summary contained an analysis of undertakings given by Mr. McMurray which Ms. Garth believed remained unsatisfied. 8 . In anticipation of our meeting on November 29, 2012, I reviewed this analysis and concluded that many of Mr. McMurray's responses were indeed unsatisfactory. 9 . At our case management meeting on November 29, 2012, I directed Mr. McMurray to provide complete and responsive replies by January 11, 2013. 10 . Counsel for Ms. Garth wrote to me on January 16, 2013 and provided me with the response to undertakings provided to her on January 11, 2013 by counsel for Mr. McMurray. She asserted that Mr.

McMurray had not complied with my direction to Mr. McMurray to provide complete and responsive replies. 11 . Prior to our case management meeting on March 5, 2013, counsel for Ms. Garth provided me with an updated analysis of Mr. McMurray's efforts to comply with my direction at our case management meeting of November 29, 2012.

12 . At our case management meeting on March 5, 2013, it was necessary to once again direct Mr. McMurray to provide complete and responsive replies. He committed to provide those replies by March 8, 2013. [3] Based on my direct involvement with this matter as case management Justice, I am satisfied that there is merit to Ms. Garth's requests for an award of costs. I do not believe that Mr. McMurray has exerted reasonable efforts to provide complete and responsive replies. [4] There have been three appearances before me and one before Justice Bensler in an attempt to elicit information which I am satisfied Ms.

Garth requires to advance her position in this action. Instead of appropriate compliance with directions to respond, Mr. McMurray has sought to proceed directly to some form of mediated settlement. Counsel for Ms. Garth correctly points out that responses to undertakings are required before she is able to properly advise her client regarding the position she might expect to take on various issues at a mediation. [5] Counsel for Ms. Garth suggested that Ms. Garth's costs, directly related to attempts to have Mr. McMurray provide complete and responsive replies, are approximately $15,000.

This figure was not challenged by counsel for Mr. McMurray. [6] I am awarding costs of $7,500 in favour of Ms. Garth payable forthwith. I am not, at this time, directing that this amount be paid from any presumptive share of moneys held in trust from the sale of Mr. McMurray’s condominium to which Mr. McMurray may be entitled. At this time, it is not clear to me what, if any, Mr. McMurray’s share of those monies will be. Heard on the 05 th day of March, 2013. Dated at the City of Calgary, Alberta this 9 th day of May, 2013. C. M. Jones J.C.Q.B.A.

Appearances: Garry Ellis GDE Family Law for the Plaintiff Peggy Walden Walden Family Law for the Defendant

_______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice C. M. Jones _______________________________________________________ A Corrigendum has been added to this Decision please note the citation line has been changed to read McMurray v Garth, 2013 ABQB 282