Kirschenman v Kirschenman, 2016 ABQB 247

Court of Queen ’ s Bench of Alberta Citation: Kirschenman v Kirschenman, 2016 ABQB 247 Date: 20160502 Docket: 4808 012518 Registry: Medicine Hat Between: Randal John Kirschenman Plaintiff - and - Twyla Lynn Kirschenman Defendant _______________________________________________________ Memorandum on Costs of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ Introduction [ 1 ] In this divorce and matrimonial property action, a

Summary Trial concerning property and spousal support was set to commence for two days on 11 February 2016 in Medicine Hat. Instead of a

Summary Trial, the parties agreed to proceed by way of Binding Judicial Dispute Resolution (“JDR”). This process commenced on 11 February 2016, and I gave my opinion on the unresolved

issues on 12 February 2016. When costs were claimed after I gave my opinion, I directed the parties to give me their written submissionsby 16 March 2016, which they did. The Positions of the Parties [2] The Plaintiff, Randal John Kirschenman (the “Husband”), seeks double or additional costs as follows: i. calculated under Column 4,

Schedule C in the amount of $33,845.51; ii. double Costs pursuant to the two settlement offers made; or iii. a lump sum award in addition to the assessed costs as set by the court. [3] The Defendant, Twyla Lynn Kirschenman (the “Wife”), submits that each party should bear their own costs. [4] The Husband argues that the JDR resulted in him being largely successful therefore he is entitled to his costs. Further, hesubmits that the Wife refused two reasonable offers to settle the matrimonial property issues and that his offers were bettered at the JDR,hence he should be awarded double costs or at least an additional lump sum over the court assessed amount under

Schedule C, column 4. [5] The Wife argues that the JDR opinion of the Court, binding on the parties by virtue of their written Binding JDR Agreement,was clearly higher than the Husband’s formal offer. Since the Husband did not beat or equal his offer, the Wife says he is not entitled todouble costs. She submits, as stated already, that each party should bear their own costs. The Law [6] In Mitrovic v Mitrovic, 2007 ABQB 107, Justice Veit said at paras 7 and 8: In family law proceedings, as in other litigation, while the court has discretion in the matter of costs, that discretion must be exercisedjudicially.

To exercise discretion judicially is to exercise it according to established principles, taking into account the particularcircumstances of the matter before the court.

It is a general principle of costs award that costs follow the event - winners get costs andlosers pay them. …the determination of who is a winner in legal proceedings is made by way of comprehensive assessment of the claims relative to theeventual judgment or order; therefore, the winner is not only the litigant who has been totally successful on each aspect of the claim, butthe litigant who has been substantially successful - the one who has enjoyed the greater success.

Where claims have a clear financialcomponent, a financial calculation of success is usually possible and that calculation of monetary amounts is used to determine whichlitigant has had the greater success. [7] In Cador v Chichak 1998 ABQB 881, Justice Wilson stated at paras 9 and 11: In my respectful opinion, costs in matrimonial matters should not as a general rule be treated any differently than costs in any othermatter, subject to the exercise of discretion, which cannot be codified or patterned into rules. …The sanction for failing to accept a good offer should be available, and it is helpful to avoiding useless or protracted litigation. [8] There is no general rule that in matrimonial cases parties always pay their own costs.

In fact, our Court of Appeal stated theopposite in Sullivan v Sullivan (1995), 1995 ABCA 135 , 219 AR 178 (CA) at para 11, where they said: The appellant cites decisions in which he claims the courts have devised a rule that in normal matrimonial cases each party will bear hisor her own costs. We do not see any such inflexible rule… [9] However, in equal division of matrimonial property, such as in Ramus v Ramus (1986), 1986 ABCA 244 , 75 AR195 (CA), the Court of Appeal provided this guidance at para 2: The trial judge made no reference in his judgment to special circumstances relating to the question of costs.

It is our view that in theabsence of such special circumstances and having regard to the finding of the learned trial judge that this was a proper case for equaldivision of the matrimonial property between the parties, each party should bear his or her own costs. [10] This was followed in Jigolyk v Jigolyk (AB KB), [2000] AJ No 402, 7 RFL (5th) 134 (QB) by JusticeMurray at para 23: Thus, if we are dealing with a straightforward case of dividing property, the property is divided equally and there are no winners and nolosers, then costs should not be awarded barring special reasons for doing so. [11] In Laskosky v Laskosky [1999] AJ No 219 (QB), success was divided, and because both parties had an asset base from whichto pay their fees, no costs were awarded.

The plaintiff made three formal offers of settlement. Justice Smith said this about one of theplaintiff’s offers at paras 2 and 6: In my view, formal offers in matrimonial matters must be clearly beaten at trial in order to justify an award of double costs. ...Formal offers made in divorce and matrimonial property matters are often difficult to assess because of the multi issue nature of thislitigation. In other types of litigation the question of whether a party has done better in court than their offer is often quite clear. While

family litigation does not always produce a crystal clear answer to whether a party has beat its offer, sometimes substantial success lies obviously with the offering party and double costs can be awarded. Opinion on Costs [ 12 ] This is a case where the Binding JDR opinion of the Court was one of mixed success with no clear winner.

The opinion given by me on 12 February 2016, provided for an equalization payment to the Wife by the Husband that would result in an equal division of the property and the finalization of spousal support. [ 13 ] The first offer made by the Husband was in a “without prejudice” letter and not a formal offer. As for the second offer, the Husband’s formal offer, the outcome of the JDR was higher than his formal offer. As for spousal support, the Wife earlier on had not confirmed her intention to proceed with her claim but it was present as a potential claim.

No offer dealt with a requirement that she waive spousal support. I am of the opinion that the Husband did not clearly beat his formal offer and the formal offer did not address spousal support which should be awarded in the Court’s opinion. [ 14 ] The JDR resulted in mixed success to the parties based on the Court’s opinion. [ 15 ] My view is that each party ought to bear their own costs. Dated at the City of Calgary, Alberta this 2 nd day of May, 2016. Bryan E. Mahoney J.C.Q.B.A. Appearances: Kevin C.E. Kurtz, Stringam LLP for the Plaintiff Darin O. Wight, Darin O. Wight Law Office for the Defendant