Smith v Smith, 2016 ABQB 291

Court of Queen ’ s Bench of Alberta Citation: Smith v Smith, 2016 ABQB 291 Date: 20160520 Docket: 4803 147613 Registry: Edmonton Between: Kim Elaine Smith Plaintiff - and - Howard Thomas Smith Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A.

Neufeld _______________________________________________________ [ 1 ] On December 18, 2016, this Court pronounced its decision regarding an action for divorce and division of matrimonial property in Smith v Smith 2015 ABQB 817 . [ 2 ] Costs were awarded to the Plaintiff, with the parties being invited to speak to that matter if necessary. [ 3 ] The Defendant subsequently applied to re-open the proceedings for the purpose of introduction of new evidence. The issue of costs remained unresolved. [ 4 ] At that time, I advised the parties that I would hear submissions on both matters, and did so via video conference.

By addendum issued on March 11, 2016, the division of matrimonial property was adjusted slightly, but I declined to re-open the

fundamental findings made earlier regarding division of a lump sum pension entitlement. [ 5 ] During oral argument regarding costs, the Plaintiff sought double costs on Column 3. The Defendant argued that such costs would be excessive. I found that double costs were not appropriate in the circumstances, but in the Addendum erroneously described the Plaintiff’s position as seeking double costs on Column 2, and required that Mr.

Smith pay costs of the action on that column. [ 6 ] In the course of settlement of the judgment roll, counsel for the Plaintiff drew this inconsistency to the Court’s attention, and I advised the parties that the correct column to be used was in fact Column 3. Counsel for the Defendant was invited to make further submissions if there remained disagreement on the amounts to be paid under that column. [ 7 ] In response, the Defendant made further submissions and offered to provide the Court with case authorities in support of the proposition that in family law matters, Column 1 should be used.

I allowed him provide those, and invited the Plaintiff to file additional cases as well, should she wish to do so. [ 8 ] I have reviewed the authorities provided by the Defendant. These were comprised of: • Bowman v Ralph’s Arctic Cat Sales & Services Ltd, 2012 ABQB 205 ; • Grant v Grant, 2010 ABQB 735 ; • Haig & Whitmore , 2015 ABQB 267 • Kent v Kent, 2011, ABQB 611 ; • Troppmann v Troppmann , 2000 ABQB 236 ; and • Yap v Supramaniam , 2016 ABQB 37 [ 9 ] I have also reviewed the cases provided by the Plaintiff.

These were: • Katrib v Katrib , 2008 ABQB 162 ; and • Mitrovic v Mitrovic , 2007 ABQB 107 [ 10 ] From these case authorities, two basic propositions emerge. First, the award of costs is a matter of discretion on the part of the trial Judge ( Haig v Whitmore at para 76 ).

Second, for the family law matters such as divorce and child support, Column 1 has been used as a presumptive starting point, whereas for matrimonial property division, that presumption does not apply ( Katrib v Katrib , at paras 25 and 26 ). [ 11 ] In this case, the matrimonial property in dispute between the parties was substantial, resulting in a net payment to the Plaintiff that was well in excess of $150,000.

Moreover, the repeated non-disclosure by the Defendant prior to trial warranted a substantial award of costs, as discussed in the Court’s original decision of December 18, 2015, and its Addendum dated March 11, 2016. In those circumstances costs based on Column 3 of Division 2 of the Rules remains appropriate. [ 12 ] As it is unnecessary for the Court to hear further submissions from the parties, the Plaintiff’s request for an additional $2,000 in respect of same is denied.

If agreement cannot be reached on the appropriate amounts to be included under Column 3, the parties may seek further direction, or set the matter down for an Assessment of Costs before the taxing officer. Heard on the 11 th day of March, 2016. Dated at Calgary, Alberta this 20th day of May, 2016. R.A. Neufeld J.C.Q.B.A. Appearances: T. Huizinga for the Plaintiff N.S. Virk

for the Defendant