Grisbrook v Grisbrook, 2016 ABQB 455

Court of Queen’s Bench of Alberta Citation: Grisbrook v Grisbrook, 2016 ABQB 455 Date: 20160822 Docket: 4801 141062 Registry: Calgary Between: Patricia Marie Grisbrook Plaintiff - and - Raymond Douglas Grisbrook Defendant _______________________________________________________ Reasons for Judgment Regarding Costs of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ [ 1 ] The parties were married August 10, 1974 and after nearly 35 years of marriage they separated in February of 2009. [ 2 ] There ensued a bitter contest over the divorce and corollary relief.

In 2012 a number of applications were brought and ultimately the matter was set for trial in the fall of 2014 for 5 days. Following a change of counsel, the parties agreed to a binding JDR which was eventually held in December 2015. At the end of the JDR I issued my ruling orally. In March of 2016 the parties appeared before me again to settle several other issues relating to the form of the matrimonial property order.

Costs were spoken to and counsel submitted written arguments on that subject which I received on April 29, 2016. [ 3 ] While both sides incurred substantial legal fees and the husband’s attitude was what I would describe as mean and not at all forth coming, financially or otherwise, the parties were well served by their current counsel who managed to convince them that a lengthy trial with possible appeals was in no one’s best interest.

Counsel wisely urged the parties to participate in a binding JDR which I am convinced saved both a considerable amount of money and time. [ 4 ] The issue of costs is largely up to the discretion of the Court. Ms. Grisbrook is seeking solicitor and client costs. During the

course of argument, I indicated that solicitor and client costs were awarded very rarely and at first glance this was not a case for solicitor and client costs. I am still of that view. [ 5 ] With respect to the JDR proceeding itself, rule 10.31(2)(

c) indicates that reasonable and proper costs do not include costs related to a dispute resolution process described in rule 4.16 or a judicial dispute resolution process under an arrangement described in rule 4.18 unless a party engages in serious misconduct in the course of the dispute process or judicial dispute resolution process. [ 6 ] This Court has a policy of encouraging settlement and if parties participate in a JDR for the purpose of resolving issues, we generally do not award costs to either party.

This is because a JDR benefits both parties and if it succeeds, both parties have succeeded with respect to the JDR. That is not to say that neither has achieved overall success in the litigation. [ 7 ] Accordingly, I agree with Mr. Colborne that no costs are recoverable for the JDR itself, although I think Ms. Grisbrook is entitled to costs for the application heard in March and this application regarding costs. [ 8 ] It was also argued on behalf of Mr. Grisbrook that applications which resulted in consent orders should not attract costs.

In support of this, he cites a decision from Veit, J in Diamond Park Builders Ltd. v. Conlee Construction Ltd., 2002 ABQB 470 . While this Court has a discretion to treat consent orders differently, I do not agree that the term “uncontested applications” in

Schedule C of the Alberta Rules of Court does not include those applications which are ultimately resolved by consent orders. Rule 10.30 contemplates costs in the case of applications which are settled. The fact that applications are resolved by consent often means only that the parties have negotiated the resolution sometimes with the Court’s assistance. [ 9 ] Ms. McKay filed three bills of cost based on column 5. Mr. Colborne suggests that the appropriate column is column 1. This matter was exceedingly hard fought and all things considered including the amount involved, I think column 5 is appropriate.

Furthermore, after taking into account the matters set out in rule 10.33 including the fact that Mr. Grisbrook did not pay spousal support for a lengthy period of time including a significant period during which there was an outstanding order to do so, I think Ms. Grisbrook is entitled to enhanced costs. [ 10 ] Accordingly, the Bill of Cost at tab 12 of the Plaintiff’s submissions may be utilized as a starting point. To that should be added the contested application of March 21, 2016 so that the fees total $31,650.00. That amount will be doubled to reflect the enhanced fees which I consider appropriate.

The disbursements and other charges are allowed as claimed. [ 11 ] Finally, as indicated above the plaintiff is entitled to the cost of this application, which I set at $3000, including disbursements, other charges and GST. Argument received on the 29 th day of April, 2016. Dated at the City of Calgary, Alberta this 19 th day of August, 2016. A.D. Macleod J.C.Q.B.A. Appearances: Ms. Heather McKay, Q.C. for the Plaintiff Mr. Daniel Colborne for the Defendant