Leach v Leach, 2017 ABQB 284

Court of Queen’s Bench of Alberta Citation: Leach v Leach, 2017 ABQB 284 Date: 20170424 Docket: 4803 155062 Registry: Edmonton Between: Joan Jaye Leach Plaintiff - and - Ian Edward Leach Defendant _______________________________________________________ Reasons for Decision on Costs of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I Introduction [ 1 ] On March 10, 2017, following a four day trial, I delivered oral reasons for Judgment. [ 2 ] The outstanding issues to be determined at the commencement of the trial were spousal support and matrimonial property.

During the course of the trial, discussions between the parties resulted in some of the issues relating to the matrimonial property being resolved. Two issues relating to non-registered investments and registered investments remained in issue, as did spousal support. [ 3 ] At the conclusion of the trial, I granted the following relief: 1. The Defendant husband was obliged to pay ongoing spousal support to the Plaintiff wife beginning on April 1, 2017 in the sum of $3,250 per month until further Order of the Court; 2.

The Defendant was not entitled to any reduction in his obligations respecting non-registered investments as a consequence of the Fabutan franchise being undersold;

3. The Defendant was entitled to an exemption of $25,065.58 with respect to the registered investments. [ 4 ] The Plaintiff seeks costs under Column 3 of

Schedule C of the Alberta Rules of Court , Alta Reg 124/2010. The Defendant argues that no costs should be awarded as there was mixed success. [ 5 ] Counsel for the Plaintiff submitted letters dated March 24, 2017 and March 31, 2017 in support of her position. Counsel for the Defendant submitted a letter dated March 31, 2017 in support of his position. II Parties’ Positions A. The Plaintiff [ 6 ] The Plaintiff argues that in this case, monetary amounts were at play both in relation to spousal support and matrimonial property. The matrimonial property award to the Plaintiff will fall between $200,000 and $300,000.

The partial resolution of the property division occurred only after the trial had commenced. The Defendant was unsuccessful in his claims that the business sold by the Plaintiff should be valued higher than its sale price, and that he had a greater exemption in registered investments than that which the Plaintiff was prepared to acknowledge. [ 7 ] Entitlement to spousal support was not acknowledged by the Defendant until closing argument. The Defendant was unsuccessful in having the Court set the Plaintiff's income at something significantly more than what she was actually earning.

Ongoing spousal support was ordered in an amount almost double that of the prior Court interim support order, and for an indefinite period. [ 8 ] The Plaintiff asks for costs under Column 3 of

Schedule C based on the amount of matrimonial property to which she was found to be entitled and the future spousal support award, the net amount of which will likely be close to $30,000 per year. B. The Defendant [ 9 ] The Defendant argues that no party can claim costs relating to the division of matrimonial property because most related issues were settled by the parties during the trial. On other issues, the parties should bear their own costs based on mixed success at trial. The values in dispute at trial related primarily to exemptions.

The property was ultimately divided equally, and therefore both parties had equal success with respect to the division. The Defendant did not dispute the Plaintiff's entitlement to ongoing spousal support for a period of 5 years. The Plaintiff was unsuccessful in persuading the Court of the amount she proposed to be used as the Defendant's income for ongoing spousal support. The Defendant had faithfully paid spousal support pursuant to a prior Court order and the Plaintiff was unsuccessful on her application for retroactive spousal support.

The Plaintiff's income was set higher than indicated on her 2016 income. [ 10 ] The Defendant submits that there was no objectionable conduct which would justify increased costs. [ 11 ] The Defendant argued after trial that if costs are payable to the Plaintiff, they should be under Column 1. [ 12 ] Finally, the Defendant takes issue with various line items on the Plaintiff’s proposed Bill of Costs. III Decision A.

Entitlement to Costs [ 13 ] In my view, the fact that some of the issues were settled during the course of the trial does not mean that the party pursuing the division cannot claim costs, at least to the time of the settlement being reached. Matrimonial property issues were not resolved before the commencement of the trial.

It was therefore necessary that the action for the division of matrimonial property continue to resolution, by trial or otherwise. [ 14 ] Regarding spousal support, the Defendant says that the Plaintiff was unsuccessful in her claim for retroactive spousal support on the basis that prior interim orders were less than the amounts to which she was entitled. However, that was only one aspect of the spousal support claim. The other aspect was ongoing spousal support, a claim for which the Plaintiff was successful.

I see this as being no different from a personal injury action where the Plaintiff claims $1M and at trial recovers $200,000. In such a case, and subject to any rulings consequent upon one of the parties having served and beaten a formal Offer of Settlement, the Plaintiff is entitled to payment of costs commensurate with the damages awarded. The Plaintiff is not penalized by having the costs award reduced or eliminated by having been unsuccessful in claiming the amount over $200,000. [ 15 ] The parties did have mixed success with respect to various issues which the Court was ultimately obliged to consider.

However, I find that the Plaintiff was more successful on balance. [ 16 ] The Plaintiff claims costs additional to those previously awarded for success on interlocutory applications. In those circumstances, it is the amount awarded at that time that the Plaintiff is entitled to recover and no more. That is, the Plaintiff cannot now say that those costs should have been higher given the amount the Plaintiff was awarded at trial. Any amounts claimed for an increase in costs for interlocutory applications beyond the awarded costs cannot now be claimed.

B. The Appropriate Column [ 17 ] Rule 10.31 provides that the amount awarded for costs is in the discretion of the Court. [ 18 ] Before the new Rules of Court came into force, costs awards were subject to

interpretation of the introductory notation in the old Rules of Court which stated: Unless otherwise ordered, divorce and corollary relief matters and matters which have no monetary amounts, for example, injunctions, will be dealt with under Column 1. [ 19 ] This notation was relied upon by Read J. in Katrib v Katrib , 2008 ABQB 162 , [2008] AJ No 256 and was followed in a number of cases. It is important to note, however, that the introductory notation merely provided a presumptive starting point which was not applicable to matrimonial property division ( Katrib at paras 21 to 22 ).

Further, notwithstanding the notation, the Court retained a broad discretion with respect to costs (at para 27). [ 20 ] In SLT v AKT , 2008 ABQB 450 , [2008] AJ No 1293, Veit J. interpreted the introductory notation differently and said that divorce and other corollary claims were to be dealt with like other monetary claims. She did agree with Read J.’s conclusion that Column 1 would be appropriate in most instances involving corollary relief, albeit for different reasons.

Veit J. opined that where the determination of the payor’s income is a complex matter, costs on a column other than Column 1 which reflect the monetary value of the claim would be appropriate. Further, a spousal support claim in which either quantum or duration are at issue may render the issue “worthy of development” thereby justifying costs on a higher Column than Column One. [ 21 ]

Schedule C, Division 1, Comment 1(4) now provides that unless the Court otherwise orders, when a remedy is given other than or in addition to the payment of money, costs must be assessed according to the higher of Column 1 of the tariff in Division 2, and the scale that would have applied if the other remedy had not been given or sought.

Division 2 indicates that unless the Court otherwise orders, matters which have no monetary amounts will be dealt with under Column 1. [ 22 ] The clear intent of these comments is to clarify that a successful litigant is generally entitled to at least costs under Column 1 in situations where the relief, or part of the relief, is not capable of being measured monetarily.

All of these provisions expressly countenance the Court's discretion to determine appropriate costs in a particular case. [ 23 ] All of the issues which occupied any significant trial time in this case related to monetarily measurable relief ( Matthews v Matthews , 2017 ABQB 260 ). [ 24 ] In my view, where a monetary award is made following litigation which culminates in a trial, there is no sound policy reason to refuse costs to the successful party. As a general principle, costs follow the event. The successful party in litigation receives a costs award and the unsuccessful party pays costs.

There is no law that requires the prevailing party to be totally successful. Substantial success is sufficient to garner a costs award. ( Mahe v Boulianne , 2010 ABCA 74 , [2010] AJ No 238 at para 6 ; Mitrovic v Mitrovic , 2007 ABQB 107 , [2007] AJ No 196 at para 8 ; Katrib at para 9 ). While the Rules do give the Court broad discretion and the Court is not bound by

Schedule C ( Haig v Whitmore , 2015 ABQB 267 , [2015] AJ No 455 at para 76 ), the default basis on which costs are awarded is party / party costs as set out in

Schedule C. [ 25 ] While it is true that the Court ordered an equal division of matrimonial property and that the full amount was not in issue, the Plaintiff can now enforce payment of an equalization amount. She previously did not have control over equal assets to the extent of that amount. [ 26 ] However, even leaving aside the issue of the value of the matrimonial property and the amount actually in dispute, it is clear that my award of spousal support at $3,250 per month will result in an award to the Plaintiff of $39,000 per year.

While that award is to remain in place until further order of the Court, I am satisfied that it will result in a total amount exceeding $50,000 over the course of time. I cannot be satisfied that it will necessarily exceed $100,000. [ 27 ] In my view, in all of the circumstances of this case, it is appropriate for an award of costs to be made in favour of the Plaintiff in accordance with Column 2 of

Schedule C for all steps taken in the litigation to the conclusion of the trial. However, as indicated earlier, additional costs for interlocutory applications are not recoverable where an Order for costs has previously been made. [ 28 ] The Plaintiff has argued that an inflationary factor should be taken into account with respect to the costs as they came into force in 2010 and have not been increased since that time. I do not agree as it has not been established that the current level of costs under

Schedule C is inordinately low as a consequence of inflationary factors. [ 29 ] As the issue of costs would have been dealt with in the usual course as part of the trial, the parties shall bear their own costs for the written submissions they provided to the Court in letter form. [ 30 ] As well, the parties initially shared the cost of the Hagen Surveys appraisal. The Plaintiff now claims for the half she paid. The Defendant asserts that they had agreed the cost would be shared. There is no material before the Court to allow for a determination. If there was an agreement, this disbursement is improperly claimed.

If the parties are unable to agree as to whether there was an agreement, they may arrange to speak to this matter. IV Conclusion [ 31 ] In conclusion, the Plaintiff is entitled to costs in accordance with Column 2 of

Schedule C, excepting any costs for interlocutory applications for which costs had previously been ordered. No inflationary factor will be applied.

[ 32 ] The parties shall bear their own costs in relation to their written submissions in relation to costs. [ 33 ] If there was an agreement that cost of the Hagen Surveys appraisal would be shared, that disbursement is disallowed. If the parties cannot reach an agreement on this item, they may speak to it within 30 days of the date of this decision. Dated at the City of Edmonton, Alberta this 24 th day of April, 2017. Eric F. Macklin J.C.Q.B.A. Appearances: Shaun D Hennessy of Coley Hennessy Cassis Ewasko for the Plaintiff Brook S Mishna of Mishna Briere & Oehm LLP for the Defendant