Ladd v Ladd, 2013 ABQB 583

Court of Queen ’ s Bench of Alberta Citation: Ladd v Ladd, 2013 ABQB 583 Date:20131010 Docket: 4809 004807 Registry: Peace River Between: Mark Ladd Plaintiff - and - Lisa Ladd Defendant _ ________________________________________ ______________ Memorandum of Decision regarding Costs and Sanction for Contempt of Court of the Honourable Madam Justice K. D. Nixon _________________________________________ ______________ [ 1 ] This decision addresses costs and sanction of the Defendant for her contempt of Court in respect to the June 16, 2011 Order. 1.

Legal costs for the children. [ 2 ] It was helpful to the Court to hear the views of the children, particularly given their ages. This was facilitated through their independent counsel in order to assist the court in making a determination as to their best interest. The divisiveness of the issues with regard to the children was such that independent counsel was reasonable and warranted. [ 3 ] These costs will be divided equally between the parties. As the Plaintiff has incurred these costs at first instance, the Defendant will reimburse the Plaintiff for half.

2. Costs and sanction of the Defendant for her contempt of court [ 4 ] There was divided success as between the Plaintiff and Defendant with respect to the issues at trial. Each party served a Formal Settlement Offer under the Rules of Court but neither met or bettered his or her offer. The Rules with respect to Formal Offers are, therefore, not applicable. [ 5 ] Each of the Defendant and the Plaintiff argue that he or she is entitled to costs on the basis that he or she was more successful than the other in respect to the numerous issues decided by the Court.

It cannot be said that either party was so substantially successful that he or she should receive costs on that basis. [ 6 ] Rule 10.33 (2) of the Rules of Court provides that the Court may consider a number of factors in awarding costs, including the conduct of a party that was unnecessary or that unnecessarily lengthened the action; a party’s denial or refusal to admit anything that should have been admitted; whether any application, proceeding or step in an action was unnecessary; contravention of or non- compliance with an order and misconduct of a party. [ 7 ] The Plaintiff argues that a party found in contempt ought to be required to pay all the costs associated therewith.

He submits that he is entitled to his legal costs from August, 2011 when the Defendant, through her counsel, not only denied she had removed the property but was holding the Plaintiff accountable for the missing property which she, herself, had taken. He argues that, from this point, it was evident that the Defendant was unable to reasonably address the property issues.

The bulk of his legal fees were incurred following this incident. [ 8 ] The Plaintiff relies on the case of Dreco Energy Services v Wenzel 2005 ABCA 185 where at paragraph 11 , the Court stated the following in addressing the sanction for contempt. In terms of the sanction for contempt, we are of the view that the amount ordered is not adequate for its purpose. Requiring those in contempt to pay a part only of thrown-away costs related directly to the contempt does not bring home to the contemnors the seriousness of their actions and their responsibilities for the consequences attributable to that contempt.

There is a public policy aspect to this entire issue. Generally, in principle, those who are found in civil contempt ought, at a minimum, to be required to accept responsibility for a substantial portion of the costs directly related to that contempt. [ 9 ] Rule 10.53 (2) of the Rules of Court provides that the court may make an award of costs against a person declared to be in civil contempt. In considering the nature of the penalty, the court can consider whether

an act of contempt was deliberate or negligent as well as any actions taken after the act of contempt, for example, an attempt to purge the contempt or apologize: Michel v Lafrentz 1998 ABCA 231 at paras 31-32 . [ 10 ] The Defendant argues that the Plaintiff focused his efforts on the removal of the items from the matrimonial home and on pursuing the contempt matter even though the Defendant’s entitlement to the items taken in contravention of the June, 2011 Order was not contested by the Plaintiff.

She places at the feet of the Plaintiff the responsibility for the prolonged divorce proceedings and resulting costs to the parties. [ 11 ] Whether the parties would have been able to resolve all their property issues and avoid trial absent the actions of the Defendant in removing the items from the matrimonial home, is not possible to determine on the evidence before the court. There were significant divisive issues between the parties other than the issue of personal property.

I am satisfied, however, given the egregious nature of the contempt of court and the Defendant’s subsequent denial and seeking to hold the Plaintiff responsible for the removed items, that the actions of the Defendant prolonged and made the process more difficult than it otherwise would have been resulting in increased legal costs. [ 12 ] With regard to the trial, it was lengthened by the time necessary to address the contempt of court issue, involving the testimony of the RCMP constable, and parts of the testimony of Ian Ladd and Mark Ladd as well as part of the cross-examination of Lisa Ladd.

It was not until the trial, under cross-examination, that the Defendant admitted that she in fact had a number of the items that had gone missing from the matrimonial home. It does not lie in the mouth of the Defendant, who committed the contempt of court and sought to hold the Plaintiff responsible for the items she, herself, took, to say that the Plaintiff should not have put this before the Court. [ 13 ] The contempt was deliberate. The items were removed from the home while the Plaintiff was away on holidays, and was the second time she had removed items after the June order.

She held the Plaintiff accountable. She maintained her denial throughout trial. There was no attempt to apologize or acknowledge responsibility. In the circumstances, costs for contempt pursuant to Rule 10.53 (2) are warranted. [ 14 ] The Plaintiff incurred $56,218.65 in legal fees after August 17, 2011. A direction that the Defendant pay to the Plaintiff a portion of these costs is warranted pursuant to both Rule 10.33(2) and Rule 10.53(2). I direct that the Defendant pay costs of $30,000 to the Plaintiff. Heard on the 24 th, 25 th, 26 th, 27 th, 28 th day of June and the 5 th day of July, 2013.

Dated at Peace River, Alberta this 4 th day of October, 2013 K. D. Nixon J.C.Q.B.A. Appearances: Monica Robinson Mann & Robinson for the Plaintiff Lisa Rybehuk (Ladd) Self-Represented for the Defendant