Chouinard v Skippen, 2013 ABQB 465

Court of Queen ’ s Bench of Alberta Citation: Chouinard v Skippen, 2013 ABQB 465 Date: 20130821 Docket: 4803 147075 Registry: Edmonton Between: Annie Chouinard Plaintiff - and - Murray Lewis Skippen Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________ [ 1 ] This case management decision determines the responsibility for the cost of a Practice Note 7 bilateral custody and access assessment. [ 2 ] The parties were divorced in 2009. They have one child, born February 2007.

At the time of the divorce, parenting was dealt with by Consent Order dated June 15, 2009, pursuant to which the parties shared joint custody, with the mother having primary residence and the father having access every second weekend, as well as one weekday each week.

[ 3 ] On February 4, 2011 Mr. Skippen applied for shared parenting on a week on/week off schedule. [ 4 ] On February 18, 2011 Justice Germain ordered that “ if the Applicant, Murray Lewis Skippen, elects to have a home study completed ” , a psychologist should be appointed pursuant to Practice Note 7 to prepare a bilateral custody and access assessment (the “ Germain Order ” , emphasis added). The Germain Order provided, with respect to cost, that: The cost(

s) of obtaining the aforementioned assessment shall be paid for by the Applicant, Murray Lewis Skippen, up front, however, this Order is Without Prejudice to any future application or Order which may be made once the Assessment has been completed or a final Order has been made with respect to custody and access and/or as to which party ought to ultimately be responsible for payment of the cost of obtaining the assessment. In particular, the right of Murray Lewis Skippen to claim those costs as “ costs in the cause ” is reserved. [ 5 ] Dr. Joanne Seitz was retained to prepare the assessment.

On May 2, 2012 the completed assessment was filed with the Court. Mr. Skippen paid the cost of preparing the assessment in the amount of $15,776.25. The assessment recommended shared parenting on a week on/week off schedule. [ 6 ] Ms. Chouinard did not agree with the recommendation, and sought to cross-examine the assessor, and to present other evidence to the Court. The application was set down for a four-day trial with viva voce evidence commencing December 18, 2012. With consent of the parties, the trial was heard by myself, as case management justice. [ 7 ] Pursuant to case management directions, Ms.

Chouinard paid the cost of Dr. Seitz ’ attendance at trial in the amount of $1600 and Mr. Skippen paid the cost of an updated assessment report in the amount of $1443.75. Ms. Chouinard does not seek to be reimbursed for any portion of the cost of attendance; and I will not make an order regarding the cost of the update assessment paid by Mr. Skippen.

These costs were incurred at the request of the parties who have already paid for them; they are roughly equal and appropriately set off one against the other. [ 8 ] In the course of the trial, the matter was resolved by agreement, reflected in a Consent Order dated December 21, 2012. The Consent Order provided for increased parenting time for Mr. Skippen through July 2013, with shared parenting following a week on/week off

schedule commencing in August 2013. The Consent Order contained other provisions relating to parenting, including “ safety rules ” mostly concerned with the child ’ s presence at her father ’ s farm and in related activities. The Consent Order also provided for ongoing case management. The Consent Order made no provision for costs, other than to provide, with regard to the cost of the assessment, that the parties might speak to this at the next case management meeting. [ 9 ] The cost issue was adjourned from the March 20, 2013 case management meeting to the June 26, 2013 meeting, to allow Mr.

Skippen to prepare an affidavit in response to one filed by Ms. Chouinard. [ 10 ] Ms. Chouinard submits that she should not be required to pay any portion of the cost of the assessment. The assessment was sought by Mr. Skippen and opposed by Ms. Chouinard on the ground that she did not consider that an assessment was necessary and that she could not afford the cost of an assessment. [ 11 ] At the time of the Germain Order, Practice Note 7 provided, in paragraph 12: Each Order for an Intervention or an Assessment must address funding, time lines for funding, and each parent ’ s responsibility for that funding.

Before ordering an Assessment or an Intervention, the Court must determine the ability of the parties to pay. If the parties cannot pay and subsidies are not available then an Intervention or an Assessment must not be ordered. [ 12 ] The current versions of Practice Note 7 (Interventions) and Practice Note 8 (Parenting Time/Parenting Responsibilities Assessments) contain the same provision in paragraph 26 and paragraph 8, respectively. [ 13 ] Ms. Chouinard submits that she advised Justice Germain that she did not have the financial means to pay for an assessment.

In her view the issue of her ability to pay was not determined by the Court. She notes that Mr. Skippen proceeded with the assessment on his own election, with awareness of her inability to pay, and argues that she should not now be held responsible for all or part of the cost of the assessment. [ 14 ] I conclude that the Practice Note provision on funding does not affect the determination of which party should bear ultimate responsibility for the cost of the assessment. The Germain Order expressly stipulated that the assessment could be obtained on Mr.

Skippen ’ s election, provided he paid the cost up front, with the ultimate responsibility for the cost to be determined after the assessment was completed or a final order made. The Germain Order was not appealed. Its validity may not be collaterally challenged in this application. [ 15 ] Further, in my view, the purpose of the Practice Note provision is to ensure that there is immediate funding in place so that an order for an assessment will not be frustrated by a lack of means to pay for it.

The provision does not address which party should bear ultimate responsibility for payment of the cost of the assessment. That issue, like litigation costs in general, may depend on which party is successful, and so will often be dealt with at the conclusion of the dispute. [ 16 ] As noted above, the December 21, 2012 Consent Order made no provision for costs other than the cost of the assessment. Mr. Skippen acknowledges that, as an aspect of the settlement, he abandoned any claim to court costs, apart from the disbursement for the assessment, which he does remain entitled to claim as “ costs in the cause ” .

I agree that this is the effect of the Germain Order and the Consent Order. Accordingly, liability for the cost of the assessment falls to be determined by the principles applicable to litigation costs. [ 17 ] Ms. Chouinard argues that she does not have the means to pay the cost of the assessment. She provided evidence of her income, her budget and her assets and claims she does not have the means to pay her current debts in a timely manner. Mr. Skippen responded that he has his own financial challenges, including incurring debt to pay for counsel while Ms.

Chouinard was self- represented. [ 18 ] The law is clear that liability for the costs of litigation does not depend on ability to pay. Impecuniosity is not a basis on which to refuse costs: Anderson v Canada Safeway Limited , 2005 ABCA 6 . [ 19 ] The usual rule is that the successful party is entitled to costs: Alberta Rules of Court , Rule 10.29.

The matter was settled, but the Court retains jurisdiction to determine costs where this is agreed, as it was in the December 21, 2012 Consent Order: Rule 10.30. [ 20 ] Entitlement to be reimbursed for litigation costs, including expert witness fees, depends on the reasonableness of the expenditure: Rule 10.31. [ 21 ] It is clear that the amount of the expenditure for the assessment, $15,776.25, is reasonable. It is in the range that was contemplated by the parties when the assessment was ordered. There has been no suggestion that the amount was unduly high. The report prepared by Dr.

Seitz involved significant investigations and was detailed and comprehensive. [ 22 ] While Ms. Chouinard did not think that an assessment was necessary, the issue is whether it was a reasonable expense. Justice Germain was of the view that it was when he ordered the assessment; having considered the assessment that was obtained in the context of the issue between the parties, I agree that it was a reasonable expense. Mr. Skippen sought a significant change in the parenting regime. He believed that shared parenting would be in the child ’ s best interests; Ms. Chouinard did not agree.

The assessment concluded that shared parenting was in the child ’ s best interests. A shared parenting approach has now been adopted in the Consent Order. [ 23 ] The remaining issue is what proportion of the cost should be borne by each party. The result of the action and the degree of success of each party are relevant considerations: Rule 10.33. While it may appear that Mr. Skippen was the more successful party, as he sought shared parenting which will now be implemented, it is my view that the Consent Order is better characterized as evenly divided success.

The Consent Order provided for a half-year period of preparation prior to the implementation of shared parenting; it also imposed conditions in terms of agreed safety rules and ongoing case management.

[ 24 ] I conclude that the cost of the assessment should be evenly divided between the parties. A costs order will therefore issue against Ms. Chouinard for 50% of the cost of the assessment. Heard on the 26 th day of June, 2013. Dated at the City of Edmonton, Alberta this 20 th day of August, 2013. J.M. Ross J.C.Q.B.A. Appearances: Ms. Annie Chouinard Self-Represented Litigant Mr. Douglas N. Skovberg Skovberg Hinz for the Defendant