ADM v SWL, 2016 ABQB 96

Court of Queen ’ s Bench of Alberta Citation: ADM v SWL, 2016 ABQB 96 Date: 20160216 Docket: FL01 16461 Registry: Calgary Between: ADM Applicant - and - SWL Respondent _______________________________________________________ Memorandum of Decision Regarding Costs of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Background [ 1 ] On June 18, 2013, the Applicant brought proceedings in this Court seeking permission to relocate with the parties’ daughter to Winnipeg, Manitoba.

The Respondent filed a response and a cross application to vary parenting by increasing his parenting time to reflect a shared parenting arrangement. [ 2 ] The matter was scheduled for a five day trial in September 2014. The matter was not concluded within that time frame; it continued in January 2015. [ 3 ] I decided that it was not in the best interests of the child to relocate to Winnipeg ( ADM v SWL , 2015 ABQB 630 ).

On the understanding that the Applicant intended to implement her stated intention to move to Winnipeg, I directed that day-to-day parenting of the child be vested in the Respondent in Calgary. [ 4 ] The Applicant has since advised that she does not plan to relocate to Winnipeg, pending an appeal of my decision. I directed that pending the outcome of the appeal, the parenting arrangements in place before trial were to remain in effect, subject to agreement between the parties. I also invited the parties to come back before me to address any interim changes to parenting.

Thus far, they have not arranged a date to do so. [ 5 ] In my reasons for decision, I directed that if the parties could not agree on costs within thirty days, they were to make written submissions. II. The Parties’ Positions Regarding Costs [ 6 ] The parties submitted written briefs and a number of letters regarding costs. At my direction, the Respondent prepared a Draft Bill of Costs. [ 7 ] The Respondent argues that he was successful, in that the Applicant’s application to relocate with their daughter was denied, so he seeks his costs.

He also argues that he was successful in his cross-application to vary parenting.

[ 8 ] It is true the Applicant’s request to relocate with the child was denied, but the Respondent mischaracterizes the result of his cross-application. I declined to consider his request to increase his parenting time to a shared parenting arrangement on the grounds that appellate authority required me to base my decision on the assumption that the Applicant intended to proceed with her stated intention of moving to Winnipeg.

That authority prohibited me from considering the so called “status quo” option, that is, the possibility that she might change her mind and decide to remain in Calgary if I declined her request to move with the child to Winnipeg. [ 9 ] Unable to consider what parenting arrangements might be implemented on the assumption the Applicant chose to stay, and the Applicant, for obvious reasons, putting forth no suggested parenting plan applicable in that circumstance, I was unable to consider whether a variation in parenting arrangements would be appropriate in the event she stayed in Calgary. [ 10 ] The Respondent submits that he made a formal offer to settle under rule 4.29, which the Applicant rejected, thereby entitling him to double costs for all steps taken after service of the offer.

The Applicant notes that the Respondent’s offer to settle did not meet the requirements of the Rules in that it was served less than 10 days before trial and was not open for acceptance for the requisite time period. The Respondent argues in the alternative that I am entitled to consider his non-compliant offer for the purposes of awarding enhanced costs under Rule 10.33. [ 11 ] The Applicant argues that the Respondent did not cooperate in moving this matter forward to a speedy conclusion, once she commenced her action.

The Respondent submits that the complexity of the proceedings underscored the insufficiency of a family law special application to resolve the difficult issue of child relocation. He argues he should not be penalized for having had to go to considerable lengths to respond to the Applicant’s request for permission to relocate their daughter. Furthermore, the Applicant’s allegations of impropriety on his part required him to make costly efforts to clarify the record, including putting viva voce evidence before the court. [ 12 ] Both parties argue that they have limited means. III.

The Respondent’s Draft Bill of Costs [ 13 ] As stated above, the Respondent submitted a Draft Bill of Costs by email to my Judicial Assistant. That email was received on February 2, 2016. It was forwarded by the Legal Assistant to counsel for the Respondent. A copy was provided to counsel for the Applicant. The Draft Bill of Costs contains the following noteworthy elements (the amounts for the various enumerated items are column 1 amounts): 1. $7,500.00 in respect of 15 contested applications. 2. $3,000.00 in respect of a parenting assessment in 2013 conducted by Dr. L.

Matsalla. 3. $6,095.00 in respect of a risk assessment in 2010 by Terra Taylor. 4. $7,575.00 in respect of supervised visits and reports concerning those visits between May 10, 2010 and August 18, 2010. 5. Airfare and conduct money for witnesses totalling $848.66. [ 14 ] The Respondent seeks the following total amounts: 1. In respect of fees for enumerated items representing various steps contemplated in the Rules $22,000.00; 2. In respect of disbursements $3,167.56; 3. In respect of other charges $35,947.99; 4.

With GST, the total sought is $62,373.92. [ 15 ] The Applicant notes that all but one of the 15 contested applications were matters involving a different action brought in the Provincial Court of Alberta.

Likewise, she submits that various disbursements for a parenting assessment, a risk assessment and costs for supervised access visits were incurred prior to this action and in relation to the Provincial Court action. [ 16 ] The Respondent counters these arguments by stating that a costs award can take into consideration the conduct of the parties and the history of all legal proceedings between them that are related to the final determination of the particular matter.

He argues that the risk assessment and parenting assessment related to issues squarely before me in this Court, namely, his behaviour and personal characteristics and their implications for his suitability to parent. IV. Law [ 17 ] It is trite law that costs are in the discretion of the court; see, for example, Interclaim Holdings Ltd v Down , 1999 ABCA 329 . Nevertheless, the court’s discretion must be exercised judicially and is guided by a number of factors. Rule 10.33(1) provides as follows: 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. [ 18 ] Rule 10.33(2) provides further guidance for deciding whether to impose, deny or vary an amount in a costs award: 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; (

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. V. Decision [ 19 ] I believe enhanced costs are appropriate in the circumstances of this case, but not because the Respondent obtained a result as good as or better than that put forth in his offer to settle. A review of that offer reveals that it proposed a shared parenting arrangement. For the reasons set forth at the beginning of this judgment, I declined to rule on the merits of any such arrangement. It also proposed a holiday sharing protocol, a

section 7 expense sharing protocol, payments of additional child support and a non-relocation agreement. None of those issues were decided. Accordingly, the offer is a non-factor in awarding costs. [ 20 ] I am prepared to award enhanced costs to the Respondent because of the complexity and difficulty encountered in responding to the Applicant’s arguments. In particular, the Respondent was required to exert considerable effort to rebut assertions that he suffered from anger management issues.

Also, he was required to demonstrate the weaknesses in the Applicant’s assertions that meaningful contact could be maintained between him and his daughter if she moved to Winnipeg and returned briefly to Calgary each month. [ 21 ] Accordingly, I award double column 1 costs for those items that I am prepared to allow on the Draft Bill of Costs. [ 22 ] I approve the specific line amounts in the Respondent’s Draft Bill of Costs, multiplied by two, depicted under the heading “Fees Claimed”, with one important exception.

In respect of item 7(1), I disallow all amounts for contested applications in the Provincial Court of Alberta. [ 23 ] The parties had the opportunity to seek costs in the Provincial Court of Alberta as matters proceeded before that Court. They also had the opportunity to agree that no costs would be sought. I do not think it appropriate for this Court to award amounts in respect of a distinct action before the Provincial Court, just because the issues addressed in those applications were related to parenting.

Those appearances dealt with distinct emergent issues and those issues were dealt with at the time and costs awards were either made or not, on an ongoing basis. It would be improper to award costs in this Court for issues heard by a different court at an earlier time. [ 24 ] I allow the $500.00 amount for the contested application in this Court on June 13, 2014. Accordingly, the amount of $7,000.00 is to be deducted from the Respondent’s Draft Bill of Costs. [ 25 ] From the total of $7,575.00 sought for supervised access visits and reports, I deduct the sum of $5,520.00 for supervision costs.

Costs incurred in exercising supervised access do not, in my view, bear sufficient connection to this action to be an appropriate reimbursable cost.

Conversely, the costs incurred to obtain reports that comment upon the Respondent’s interactions with the child do bear directly on the decision I was required to make. [ 26 ] The evidence of expert witnesses assisted me to decide the merits of the Applicant’s request to relocate with the child to Winnipeg and the implications of vesting primary care with the Respondent, assuming the Applicant carried through with her plan to relocate even if I did not permit the child herself to relocate.

There is precedent for ordering costs of such experts to be shared by the parties, when the information obtained allowed the Court to determine the best interests of the child: DBF v BF , 2013 ABQB 16 . The information gleaned from these reports and testimony will also be of value if the Respondent proceeds with an application for shared parenting, should the Applicant decide against relocating to Winnipeg. [ 27 ] Accordingly, the Applicant shall reimburse the Respondent for half of the following costs: (

a) Dr. L. Matsalla – expert witness fees – October, 2014 1,200.00

(

b) Dr. L. Matsalla – counselling for Court - March 13, 2014 200.00 (

c) Dr. L. Matsalla – parenting assessment – October 23, 2013 3,000.00 (

d) N. Rohatinsky – expert witness fee – January 2, 2015 2,100.00 (

e) N. Rohatinsky – assessment 14,929.33 (

f) T. Taylor – risk assessment 6,095.00 [ 28 ] In

summary, I award costs in accordance with the Draft Bill of Costs referred to above, doubled in respect of approved line items and otherwise adjusted as noted herein. Dated at Calgary, Alberta this 16 th day of February, 2016. C.M. Jones J.C.Q.B.A. Appearances : Penny L. Pritchett Knight Pritchett for the Applicant Rupert N. Joshi Foster LLP for the Respondent