TLS v RLS, 2014 ABQB 500

Court of Queen ’ s Bench of Alberta Citation: TLS v RLS, 2014 ABQB 500 Date: 20141219 Docket: 4801 131308 Registry: Calgary Between: TLS Plaintiff - and - RLS Defendant _______________________________________________________ Memorandum of Decision Regarding Costs of the Honourable Mr. Justice C.M. Jones _______________________________________________________ Introduction [ 1 ] This matter was heard before me on June 26, 2014. TLS sought a determination of RLS’s income for both retroactive and ongoing child support purposes.

She sought to have the court impute income to RLS of between $110,000.00 and $120,000.00 per annum. For these purposes I imputed income of $85,000.00 per annum. In the result, RLS was required to pay retroactive

section 7 child support of $13,297.06 and

section 3 child support of $51,345.00, for a total of $64,642.06. [ 2 ] I directed the parties to provide me with submissions regarding costs.

Position of the Parties [ 3 ] TLS seeks costs on a solicitor-client basis in the amount of $23,000.00, asserting: 1. She was successful in the application before me; 2. She has incurred legal costs of $39,310.00, involving three different law firms, from February 20, 2007 to and including the application before me; 3. Since engaging her current counsel, she has incurred disbursements from January 17, 2014 to June 26, 2014 of $1,247.76; 4.

She had made numerous offers to settle, including an offer on January 17, 2014, prior to questioning, at which time her fees for legal assistance from her current counsel were $2,625.00, having increased to $23,095.50 by the time the matter came before me; 5. TLS asserts that RLS offered her $21,695.30 in retroactive child support on the day the matter came before me, or approximately one-third of the award which resulted from my order; and 6. That, should I order costs in accordance with

Schedule C to the Rules of Court , instead of solicitor-client costs in the amount of $23,000.00, I should award double column 4 costs, which would be fees of $16,000.00. [ 4 ] RLS asserts that the parties enjoyed mixed success and should bear their own costs, asserting that: 1. TLS was not successful in having the Court impute income to RLS at the level she sought; 2. RLS did succeed in that the Court “based its deemed income on amounts drawn from RLS’s tax returns”; 3. RLS did not succeed in having his imputed income based on his line 150 income; and 4.

TLS was successful in her request to have income imputed to RLS. [ 5 ] RLS claims that TLS’s claim for costs pursuant to item 1(1) of her bill of costs (Statement of Claim and Notice to Disclose) should not be allowed. He asserts that an award, if any, in respect of this item should properly be claimed after trial and is not an appropriate item for costs in a matter involving an interim application for child support. [ 6 ] He further argues that solicitor-client costs are inappropriate due to the parties mixed success.

He disputes the assertion that he should be required to pay solicitor-client costs as they relate to matters other than the application before me, such as costs arising in connection with Questioning. RLS claims to be in bankruptcy and does not have the financial means to pay solicitor-client costs. The Basis for a Costs Award [ 7 ] I note the following: 1. 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; 2. Rule 10.29(

a) provides that the principle it enunciates is subject to the Court’s discretion to award costs under Rule 10.31; 3. Rule 10.31 confers general discretion upon the Court to award costs, taking into account the factors specified in Rule 10.33; 4. 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. [ 8 ] While the Court has discretion to award costs, I note comments of Macleod J. in Aram Systems Ltd. v. NovAtel Inc ., 2010 ABQB 152 : A review of the case law in this Province reveals that the award of costs is in the discretion of the trial judge provided that discretion is exercised “judicially”…On the one hand, if a party is successful and the litigation has been conducted reasonably, it’s unfair to require the successful party to bear any costs.

On the other hand, requiring the unsuccessful party to bear all the costs will adversely affect access to justice because to assert rights unsuccessfully would be prohibitively expensive: para 2. Decision [ 9 ] In my view, TLS enjoyed success in the matter before me. The premise underlying her application before me was sound. It was appropriate to award retroactive and ongoing child support, albeit based on imputed income of $85,000.00 and not $110,000.00 to $120,000.00, as suggested in her counsel’s letter to the court dated June 6, 2014.

My imputation of income in the amount of $85,000.00 was considerably higher than RLS had been willing to accept. The fact that his arrears, arising from imputation of income, were only three times and not four times what may have been sought by TLS does not suggest to me that he enjoyed success. [ 10 ] RLS had largely ignored his child support obligations, failing to make payments at times when he was gainfully employed. He failed to convince the court that he had medical justification for closing down his profitable business and pursuing less remunerative employment.

He offered insufficient evidence in support of his claim to have been unable to continue in a higher paying carpentry position. He could not satisfy the court that he had justification for abandoning a large account receivable which, if collected, would have aided him in meeting his child support obligations. I determined that he intentionally chose a course of action which would compromise his ability to make child support payments.

His children and TLS suffered the consequences of his action and TLS was required to incur considerable expense to hold him accountable. [ 11 ] Retroactive support in the aggregate amount of $64,642.06 resulted from my decision. However, simply selecting Column 2 of Division 2,

Schedule C to the Rules of Court , as the applicable column with respect to which costs should be calculated, ignores the fact that ongoing child support which arises from my decision yields additional monetary amounts over time, which TLS succeeded in securing and which RLS opposed. [ 12 ] The precise monetary amount in respect of which a column should be selected cannot be determined, as the duration of child support at levels I awarded and the future adjustments to RLS’s income for purposes of child support, are matters to be determined in the future. Accordingly, I reject RLS’s assertion that Column 2 of Division 2 of

Schedule “C” to the Rules of Court is the proper approach to awarding costs in this matter. Nor is Column 1 the appropriate measure of costs in this situation. [ 13 ] TLS presented a bill of costs. It disclosed disbursements of $997.81 and other charges of $273.80. In the result, I award costs against RLS in favour of TLS as follows: 1. Fees $20,000.00; 2. Disbursement of $997.81; and 3. Other charges of $273.80, together with applicable GST. Heard on the 26 th day of June, 2014. Dated at the City of Calgary, Alberta this 19 th day of December, 2014. C.M. Jones J.C.Q.B.A. Appearances:

Pam L. Bell Bell and Stock LLP for the Plaintiff Joy Dukeshire Dukeshire Law Office for the Defendant