Zima v Vanderzwaag, 2017 ABQB 153

Court of Queen’s Bench of Alberta Citation: Zima v Vanderzwaag, 2017 ABQB 153 Date: 20170303 Docket: 4813 005685 Registry: Ft. McMurray Between: Katerina Miluse Zima Plaintiff/ Defendant by Counterclaim - and - Jason Corey Vanderzwaag Defendant/ Plaintiff by Counterclaim _______________________________________________________ Supplementary Reasons for Judgment and Costs of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] Since issuing my Reasons for Judgment in this matter, I have read the correspondence from the parties. [ 2 ] Mr.

Vanderzwaag has noted either errors or omissions in my Reasons for Judgment. Mr. Hinz agrees. Those errors, in my view, are not material to the decision itself; they should, however be corrected, as below. Counsel for Ms. Zima is directed to reflect this in his draft of the Judgment Roll. [ 3 ] At page 11, paragraph 74 of my Reasons, the net rollover amount should be $11,850. [ 4 ] At page 11, paragraph 75, the payment of pension monies referenced can also be accomplished by a further RRSP rollover, of the $21,460.00 amount.

[ 5 ] At page 11, paragraph 78 of my Reasons I reference a $9,000 RRSP. In fact, it is a $9,000.00 TFSA. [ 6 ] The major remaining issue between the parties is with respect to costs. Mr. Vanderzwaag had asked to speak to costs, at the close of argument; a request which I forgot. My decision respecting costs was, therefore, premature. I am revising that decision pursuant to Rules 9.12 and 9.14. [ 7 ] The parties have now advised me that Mr. Vanderzwaag had been represented by counsel through part of the proceeding. Counsel for Mr. Zima concedes, and I order, that for all steps where Mr.

Vanderzwaag was represented by Counsel he is entitled to full party-party costs, not just one-half. [ 8 ] Counsel for Ms. Zima argues that the ultimate transfer of assets ordered in my Judgment puts costs in Column 2, not Column 3. I disagree. The amounts in issue in this case clearly fit under Column 3, ie over $150,000. [ 9 ] In my decision I ruled there was to be no adjustment to costs for inflation; that is to say, the amounts under Column 3 were not to be grossed up to present values, owing to inflation since

Schedule “C” was published. [ 10 ] I did not make any Order regarding whether double costs were appropriate, because I was not aware of any formal offer having been made under the Rules of Court . [ 11 ] Mr. Vanderzwaag has now put before me, a formal offer made to Ms. Zima, where Mr. Vanderzwaag offered to pay an equalization payment to Ms. Zima, of $90,000 for division of matrimonial property, and no amount for spousal support. Mr. Vanderzwaag maintains he did better than that at trial. [ 12 ] The difficulty is in comparing the offer to the trial decision. At trial, for the first time, Ms.

Zima said she did not wish to keep the W4th Avenue property in Vancouver, but rather wished it to be sold and divided between the parties. The formal offer was based upon the premise that she would keep the W4th Avenue property in Vancouver. [ 13 ] Mr. Vanderzwaag argues that, if the Judgment is adjusted for that change in premise, my award is clearly less favourable to Ms. Zima than was his formal offer. [ 14 ] Mr.

Hinz says that, because I did not assign the W4th Avenue property to one or the other party, but left it to be sold and the proceeds equally divided, it should not be considered for the purpose of comparing my award to the formal offer. [ 15 ] I agree with Mr. Vanderzwaag. It is apparent that what I awarded is far less favourable to Ms. Zima than what was formally offered to her. Pursuant to Division Five of Part Four of the Rules of Court , Mr. Vanderzwaag is entitled to double costs for all

Schedule C Tariff items after service of his Formal Offer to Settle on November 28, 2014. To the extent that he was represented by counsel for any such steps, he shall have double Column 3. Where he was self-represented, his one-half Column 3 will be become full Column 3 Costs. [ 16 ] The parties have referred to me certain claims by Mr. Vanderzwaag for costs which are opposed by Ms. Zima. I rule as follows: Series 2 - Item 3(1): Not allowed. The Tariff does not provide for costs for fulfilling undertakings.

Series 3 - Item 4: I have already ordered costs in respect of Notice to Admit Facts, The amount requested here would be duplicative. It is denied. Series 3 - Item 6(1): Is denied. It was a Consent Order which Mr. Vanderzwaag attended to have signed because he was in Fort McMurray. Series 3 - Item 9(1): Denied. This was not an application, merely the filing of document. Series 3 - Item 6(1): Denied. No costs are awarded for attending to obtain a Consent Order. Series 3 - Item 9(1), “Confirmation of Trial Date”: Denied. This is not an application, merely a filing of a consent document. Series 3 - Item 3(J): Denied.

There are no costs in the Tariff for providing undertaking responses. Legal Advisory Services: This claim is denied. It would be tantamount to an order for solicitor/client costs. It is not an appropriate disbursement claim. Appraisals:

All of the appraisals were reasonably obtained and necessary to the litigation at the times that they were ordered and obtained. All of the appraisal costs incurred by Mr. Vanderzwaag are allowed.

Schedule Trial Date Fee: The amount paid by Mr. Vanderzwaag, and not repaid by Ms. Zima is allowed. Counsel for Ms. Zima provides evidence the amount taxable is $300. Document Production: The full amount claimed, of $802, is allowed; receipts have been provided showing that cost has been incurred. NXT Letter: This expert opinion was not provided in time to accord with the Rules of Court and was not allowed by me into evidence. The amount expended to obtain the report is denied. GST: GST shall be limited to disbursements only. [ 17 ] Counsel for Ms. Zima is requested to prepare the final order for approval by Mr.

Vanderzwaag. Heard on the 3 rd day of November, 2016 to the 4 th day of November, 2016. Dated at the City of Calgary, Alberta this 3 rd day of March, 2017. R.J. Hall J.C.Q.B.A. Appearances: Harold Hinz, for the Plaintiff/Defendant by Counterclaim Jason Corey Vanderzwaag, not represented by counsel