Emslie v Emslie, 2016 ABQB 693

Court of Queen’s Bench of Alberta Citation: Emslie v Emslie, 2016 ABQB 693 Date: 20161208 Docket: 4803 137756 Registry: Edmonton Between: Coleen Dawn Emslie Plaintiff - and - Trevor Dale Emslie Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] In Emslie v Emslie , 2015 ABQB 581 , I determined guideline incomes for the parties for the years 2010 to 2014. I attributed income to Ms. Emslie for those years. As a result of the recalculations I directed, Mr. Emslie was found to be in arrears of

section 3 support by $63,888.11 and

section 7 expenses of approximately $8,500.00. [ 2 ] My decision reserved jurisdiction to deal with costs. I met with the parties to hear their positions on costs on November 15, 2016. I had received written submissions from Ms. Crerar for Mr. Emslie dated November 13, 2016. Mr. King for Ms. Emslie responded after the meeting with a letter of November 16. I received updated submissions from Ms. Crerar on November 19 and from Mr. King on November 25. [ 3 ] Ms. Crerar seeks costs on Column 3 because of the amount of arrears originally claimed by Ms. Emslie (over $200,000), or

alternatively on Column 1. She argues that Mr. Emslie was essentially the successful party because he was successful in having the majority of the arrears claimed by Ms. Emslie reduced. [ 4 ] I declined to consider retroactive child support earlier than January 1, 2012, and limited it to only one of the children. I also attributed income to Ms. Emslie for the purposes of calculating

section 7 arrears. [ 5 ] Ms. Crerar is critical of Ms. Emslie’s conduct through the litigation, which has spanned the last five years. She notes that there has been extensive questioning and requests for numerous undertakings, and argues that there was significant, unnecessary delay in bringing the issues before the Court. [ 6 ] Mr. King argues that each party should bear their own costs because of divided success. Analysis [ 7 ] Costs are in the discretion of the Court. That is clear from Rule 10.33(1): 10.33(1) 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 ] The “loser pays” rule is applicable to family law matters. That was emphasized in Metz v Weisgerber , 2004 ABCA 151 , and followed by Lee J in BHH v SBH , 2004 ABQB 537 , amongst other cases. [ 9 ] While Ms. Emslie sought significantly more arrears than she was awarded, she was faced with an ex-spouse who paid almost nothing for the support of his children in 2012, despite receiving very substantial funds that year, and who took the position since 2011 that he had overpaid child support.

He essentially paid nothing voluntarily thereafter. [ 10 ] No doubt Mr. Emslie had fallen into financial hardship, but he did so in the face of receipt of a significant amount of money, none of which was shared with his children (at least through Ms. Emslie). [ 11 ] Ms. Emslie vigorously opposed Mr. Emslie’s attempts to eliminate all of his arrears. Her position on enforcing all of his arrears and seeking retroactive amounts was not ultimately successful, partly due to her delay in seeking retroactive adjustments. [ 12 ] Nevertheless, she was found to be owed some $70,000 more than Mr.

Emslie was ever prepared to pay her voluntarily. [ 13 ] Mr. Emslie perceives himself to be the winner in this case. His arguments prevailed on many of the issues, but for the main ones: the

interpretation of the settlement agreement and the addition of a significant amount of the sale proceeds from his company to his 2012 income for child support purposes. He succeeded in limiting his overdue obligations to Ms. Emslie to some $70,000 instead of the over $200,000 that she sought. [ 14 ] In the end, however, Ms. Emslie prevailed by receiving an order in her favour in a significant amount. It may have been about a third of what she was hoping for, but her only way of recovering the amount she did was to resist Mr. Emslie’s attempts to eliminate arrears and to seek retroactive child support. [ 15 ] Mr.

Emslie cites a number of cases on costs, including Paddon Hughes Development Co. Ltd. v Pancontinental Oil Ltd. , 2992 CarswellAlta 65 (ABQB). There, Rooke J (as he then was) recognized that there were cases where costs were apportioned between the parties based on the ratio of success (at paragraph 7). [ 16 ] He also noted at paragraph 7 that “even where a party is primarily successful on all but a minor number of issues, that party will often get full costs”. [ 17 ] In my view, this is not a case in which to apportion costs.

If a party believes that the other party is unreasonably demanding too much, the appropriate way of dealing with that is to make an offer of judgment for what the party believes to be the correct amount. If the offering party is right, and the other party refuses the offer, the offering party will normally be compensated in costs. [ 18 ] Parties cannot simply go to trial and, when less is awarded to the other side than was sought, claim victory and seek costs. [ 19 ] Here, it was Mr. Emslie who sought for years to have his arrears eliminated, and he was unsuccessful in doing so. His action caused Ms.

Emslie to cross-apply for relief, much of which she was eventually denied. [ 20 ] Nevertheless, it cannot be said that Mr. Emslie was successful on all but “a minor number of issues”.

[ 21 ] Mr. King fairly recognizes that Ms. Emslie’s approach to the matter caused some delay and likely some excessive production of records and questioning. That brings into play Rule 10.33(2)(a): 2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

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 ... Conclusion [ 22 ] I agree with Mr. King that this is an appropriate case for the parties to bear their own costs. Mr. Emslie is still obliged to pay any outstanding costs awards from previous applications in this matter. Heard on the 15 th day of November, 2016. Dated at the City of Edmonton, Alberta, this 8 th day of December, 2016. Robert A. Graesser J.C.Q.B.A. Appearances: Barry M. King Strathcona Law Group for the Plaintiff Jordan Crerar Crerar Law LLP for the Defendant