Gajjar v Aulakh, 2016 ABQB 659

Court of Queen’s Bench of Alberta Citation: Gajjar v Aulakh, 2016 ABQB 659 Date: 20161123 Docket: 4803 165335 Registry: Edmonton Between: Sangita Ramanbhai Gajjar Plaintiff - and - Navchetan Singh Aulakh Defendant _______________________________________________________ Memorandum of Decision on Costs of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ I. Introduction [ 1 ] The trial in this matter, heard October 3 to October 7, 2016, dealt with matrimonial property division, Ms. Gajjar’s claim for spousal support, and various parenting issues.

Oral Reasons for Judgment were delivered October 20, 2016. This is a Memorandum of Decision on Costs flowing from that Judgment, based on written submission provided by the parties. [ 2 ] At trial, Ms. Gajjar’s claim for spousal support was dismissed. She was given the option of listing the matrimonial home for sale or retaining the home and providing Mr. Aulakh with an equalization payment of $110,415.50. I am advised she elected to pay the equalization payment. [ 3 ] The parties agreed to continue a shared parenting arrangement based on a four day rotation which accommodates Mr. Aulakh’s work schedule.

The majority of miscellaneous parenting issues were resolved in Ms. Gajjar’s favour.

[ 4 ] Each party now claims costs. No formal offers to settle under rule 4.24 of Alberta Rules of Court , Alta. Reg. 124/2010 were served; therefore, the issue for determination is whether there are factors under rule 10.33 which I should consider in imposing, varying or denying an award of costs. II. Position of the Parties 1. Mr. Aulakh [ 5 ] Mr. Aulakh argues there were significant delays in setting this matter for trial that result from Ms.

Gajjar’s actions or lack of actions, including: - being self-represented for a time and having four different counsel; - delay in returning a 2014 Consent Order; - non-attendance at Questioning. [ 6 ] Mr. Aulakh argues that Ms. Gajjar was impossible to negotiate with because she kept changing her position. He argues that he made a With Prejudice offer to accept $108,500 to settle matrimonial property and spousal support.

Since the equalization payment determined at trial was higher than his offer, he argues he should be awarded costs on Column two, including enhanced costs of $5,000, because of his legitimate attempts to settle the matter. 2. Ms. Gajjar [ 7 ] Ms. Gajjar argues the five day trial was unnecessary, and that positions taken by Mr. Aulakh unnecessarily prolonged the trial. For example, he maintained his position that the parties should alternate claiming the child as a dependant on their Income Tax Returns, and went so far as to call an expert accountant at trial to discuss this benefit.

That expert established that a party paying child support (in this case Mr. Aulakh) cannot claim a child as a dependent without the consent of the parties but in any event, Mr. Aulakh could not do so as he was already claiming his current common-law spouse as a dependent. [ 8 ] Further, Ms. Gajjar argues that she was prepared to pay an equalization payment in the range of $110,000 since December 2015 and specifically agreed, on April 4, 2016 to accept Mr. Aulakh’s offer to pay him $108,500 to settle matrimonial property and spousal support. III.

Analysis [ 9 ] It is indisputable that costs in actions for matrimonial property division, support or custody should not be treated any differently than costs in other litigation. Indeed, there are strong public policy reasons to support cost awards in matrimonial litigation as the parties should be encouraged, wherever possible, to resolve their differences outside the courtroom. [ 10 ] In the trial of this action, there were three principle issues: Ms.

Gajjar’s claim for spousal support, the determination and distribution of matrimonial property and a multitude of discrete parenting issues including terms of the right of first refusal, the time for drop-off at the end of Mr. Aulakh’s parenting time, who would retain the child’s passport, extracurricular activities, and terms regarding travel outside of Canada. In addition, there was a dispute as to whether Mr.

Aulakh had a right to claim the child as a dependent on his Income Tax Return, which parent should receive the monthly support payment issued under the Child Youth and Family Enhancement Act (the CFS payment), and which parent would ensure the child’s daycare costs were paid.. [ 11 ] Rule 10.33 provides a number of considerations that a court may take into account in making a costs award: (

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. [ 12 ] At trial, Mr. Gajjar’s claim for spousal support was dismissed. Ms. Gajjar who remained living in the matrimonial home was given the option of listing the home for sale or paying Mr. Aulakh an equalization payment of $110,415.50. Most of the parenting issues were resolved in Ms. Gajjar’s favour. [ 13 ] At first glance, then, this appears to be a case of mixed success where it would be appropriate that each party bear their own costs.

[ 14 ] The written submissions provided, which included correspondence between counsel leading to trial, compels further inquiry. [ 15 ] Rule 10.33(2) sets out factors for the Court’s consideration in deciding whether to impose, deny or vary an award of costs: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) a party’s denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party’s defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. [ 16 ] On the materials provided to me, I cannot conclude that Ms. Gajjar was responsible for excessive delay. After all, this matter came to trial just over three years from the date the Statement of Claim for Divorce and Division of Matrimonial Property was issued. The Record does not show a plethora of interim applications. The trial itself was well run, with counsel preparing an Agreed Statement of Facts and an Agreed Exhibit Book. [ 17 ] A Consent Order was issued by Justice Goss June 10, 2014 and filed August 25, 2015.

While a two and a half month delay is not ideal, it is certainly not exceptional in matrimonial litigation. The delay in filing the Order does not appear to impede the progress of the litigation overall. [ 18 ] Further, there may be a variety of reasons why Ms. Gajjar had several counsel in the course of this action. Litigating against a self-represented individual, or one who retains multiple counsel is simply one of the vagaries of litigation. [ 19 ] Arguably, it was Mr.

Aulakh who contributed to the delay by twice, unsuccessfully, applying to sever the Divorce from the corollary relief. [ 20 ] The correspondence reveals that the parties had agreed on a payment to Mr. Aulakh to settle both matrimonial property and Ms. Gajjar’s claim for spousal support of $108,500. [ 21 ] Mr. Aulakh offered a With Prejudice offer March 21, 2016 to accept a onetime lump sum payout of $108,500 to settle matrimonial property and spousal support. This was to be paid within 60 days of the parties executing Minutes of Settlement. The balance of Mr.

Aulakh’s offer dealt with miscellaneous parenting issues. [ 22 ] On April 4, 2016, Ms. Gajjar agreed to pay Mr. Aulakh the lump sum payout of $108,500 within 60 days of the parties executing Minutes of Settlement. Her letter outlined her position on the various parenting issues. It is clear the parties remained at odds on many of these points. [ 23 ] Unfortunately, neither party made it clear that they were prepared to settle the matrimonial property and spousal support in the absence of an agreement on the various parenting issues. [ 24 ] On September 14, 2016, counsel for Ms.

Gajjar advised “that my instructions from Ms. Gajjar are to settle property based on current values, and that the remaining issues going to trial will be some minor parenting issues . . .” It is not clear what equalization payment she was proposing, but the letter included an appraisal on the matrimonial home completed by Harris and Bowker dated August 31, 2016. At trial, the matrimonial home was valued at $370,000, a value not reflected in any of the appraisals in evidence. [ 25 ] At the end of the day, Mr. Aulakh was awarded slightly more in an equalization payment than he offered to accept. Had Ms.

Gajjar refused this offer, Mr. Aulakh would have had a compelling argument for costs. But Ms. Gajjar did agree to pay this amount. Neither party saw fit to settle matrimonial property and spousal support in the absence of an agreement on parenting issues. It appears that Mr. Aulakh’s compromise on matrimonial property was very much tied to an agreement on the parenting issues on the terms he desired. [ 26 ] Had Ms. Gajjar made it explicitly clear that she would pay $108,500 independent of any agreement on parenting issues, I would be inclined to award her full costs.

By September 2016, it appears she may have resiled somewhat from her position. At the very least, it is unclear what amount she was offering to settle for. [ 27 ] The majority of the trial time was spent on matrimonial property and spousal support, not parenting issues. Had the parties resolved matrimonial property and parenting issues, trial time would have been reduced to one day. [ 28 ] Noting Ms. Gajjar’s offer in April 2016 to settle matrimonial property and spousal support for the amount sought by Mr.

Aulakh, and noting her substantial success at trial on the parenting issues, I conclude it is appropriate to award Ms. Gajjar one-half of her proposed Bill of Costs. I disallow the $1,500 fee claimed for the judicial dispute resolution brief, as rule 10.31(2)(

c) does not provide for costs related to a judicial dispute resolution process. IV. Conclusion

[ 29 ] Ms. Gajjar is awarded $7,875 in fees (inclusive of GST) plus disbursements and other charges of $971.73 for a total of $8,846.73. Heard on the 3 rd day of October, 2016. Dated at the City of Edmonton, Alberta this 23 rd day of November, 2016. Dawn Pentelechuk J.C.Q.B.A. Appearances: Mimi S. Simon Ozerna Family Law for the Plaintiff Ashley Rickard Jackie Handerek & Forester for the Defendant