Osborn v Gagne, 2017 ABQB 438

Court of Queen’s Bench of Alberta Citation: Osborn v Gagne, 2017 ABQB 438 Date: 20170712 Docket: 4803 179168 Registry: Edmonton Between: Karen Evelyn Osborn Plaintiff/applicant - and - Mark Richard Gagne Defendant/respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] On this regular chambers application, Ms. Osborn asks the court to impose a penalty of $50.00 per day on Mr. Gagne until he completes the disclosure she requested on March 8, 2017. Ms. Osborn’s statement of claim for divorce, also filed on March 8, 2017, requested, in addition to a divorce judgment, an order that she support her 17 year old child who lives primarily with Mr. Gagne, spousal support from Mr. Gagne in an undisclosed amount, and an equal division of matrimonial property. [ 2 ] On June 6, 2017, this court ordered Mr. Gagne to provide to Ms.

Osborn all remaining outstanding disclosure by no later than June 12, 2017, and added: Failing which . . . a response to disposition for further matters of compliance shall include provisions for financial consequence with respect to delay. Paragraph 3 of the June 6 th order stated: “Costs shall be spoken to on June 19, 2017 . . .”.

[ 3 ] For three reasons, Ms. Osborn’s request for a daily fine or financial penalty to be paid to herself is denied. First, Rule 10.49, on which she relies, states that any sanction imposed pursuant to that rule is paid to the clerk of the court, not to the litigant. Second, Rule 10.49 requires not only a breach, but also proof that the breach will interfere with the administration of justice; no attempt to prove the second part of the requirement has been made here.

On the contrary, the evidence here is that the respondent was attempting to provide the information requested, and that most of what was available had been provided. The applicant did not explain why the missing information is necessary, e.g. the missing information had no effect on child support and no clear connection to the spousal support claim. The missing assets and liabilities list presumably does relate to the claim for an equal division of matrimonial property.

Third, it is at least arguable that, where a litigant asks for the imposition of a monetary penalty pursuant to Rule 10.49, the respondent should be provided with analogous safeguards to those dealing with citations in contempt pursuant to Rule 10.52; personal service should be required, notice of the potential penalty should be given, and clear directions should be given concerning what is required to be done. Here, the court accepts the evidence that Mr. Gagne received notice of the June 19 hearing, and notice that he still had to provide a list of assets and liabilities.

However, there is no evidence that specific notice was given to Mr. Gagne of his jeopardy concerning the potential imposition of a $50.00 a day fine. [ 4 ] Case law establishes that an indemnity of costs is rarely awarded; insufficient evidence has been provided on this application to justify an indemnity. Indeed, on June 6, 2017, only $500.00 in costs was requested in court despite the written warning that had been given to Mr. Gagne about a possible request for an indemnity of costs; the court did not make an award of costs on that date. Only party and party, or

Schedule C, costs are awarded on this application. Mr. Gagne is ordered to pay Ms. Osborn costs of $500.00 for the June 6, 2017 appearance plus $500.00 for the June 19 appearance; these costs are a debt of Mr. Gagne’s to Ms. Osborn and may be paid by reducing Mr. Gagne’s share of the matrimonial property. Mr. Gagne is ordered to provide a sworn list of assets and liabilities by July 17, 2017. Cases and authority cited [ 5 ] By the court : Rule 599.1 Alta.

Erg. 390/1968; Milfive Investmens v Sefel 1998 ABCA 164 ; Klushin v Tkachuk 2001 ABCA 231 ; Trang v Edmonton Remand Centre 2007 ABCA 267 ; Meads v Meads 2012 ABQB 571 ; J.T. v I.T . 2015 ABQB 648 ; 336239 Alberta Ltd. (Dave’s Diesel Repair) v Mella 2016 ABQB 174 ; Morin v TransAlta Utlities Corporation 2017 ABQB 409 ; ALRI Rules of Court Project , Consultation Memorandum No. 12.17 Costs and Sanctions, 1 February 2005 at p. 69. 1. Background

a) Factual [ 6 ] Ms. Osborn commenced this action by statement of claim, issued on March 8, 2017, in which she asks for: a divorce judgment; an order that she pay child support pursuant to the Child Support Guidelines for her 17 year old child who is living primarily with Mr. Gagne; for spousal support in an undisclosed amount; and, for equal division of matrimonial property. [ 7 ] On March 8, Ms.

Osborn also filed the usual Form FL-17 Notice to disclose/Application, returnable on May 5, 2017 [ 8 ] The “Warning” at the bottom of the Notice to disclose indicates that if the party to whom it is addressed does not come to court on the date indicated, the court may order specific remedies including, for example, an order to provide the documents by a specific date, or an order to pay support using an adverse inference, or order the respondent to pay costs “up to an amount that fully compensates the applicant for all costs incurred in the proceedings”; or order that the respondent’s employer provide the requested information, or, “grant any other remedy requested by the Applicant”.

The Warning does not include any reference to a daily fine or to garnishment. [ 9 ] An affidavit of service, filed on March 28, 2017, establishes that Ms. Osborn's notice to disclose was served on Mr. Gagne on March 24, 2017. [ 10 ] The court’s procedure card indicates that, on May 5, the notice to disclose application was adjourned to May 15, 2017. The procedure card indicates that, on May 15, the notice to disclose application was adjourned, on consent, to June 16, 2017. The procedure card appears to be in error; a fax request made by Ms.

Osborn on May 12, 2017 for an adjournment on consent to June 6 was apparently granted. [ 11 ] On May 30, 2017, Ms. Osborn’s lawyer wrote to Mr. Gagne telling him that he still required, amongst other matters, more information on the pre-paid CIBC VISAs, an asset and liability list, and a copy of his most recent mortgage statement. [ 12 ] On May 31, Mr. Gagne sent to Ms. Osborn’s lawyer information about his pre-paid CIBC VISA, and the available mortgage information.

He also indicated that he had been booked by his employer on a course for the next week and wondered if the court date could be further adjourned. [ 13 ] On June 4, Mr. Gagne sent to Ms. Osborn’s lawyer an email containing an acknowledgement that he had not completed the Asset and Liabilities list, and stating that he was going on the employment course earlier mentioned, that he would be back from the course on June 12 and expected to be able to work on the list during the week of June 12.

He added: “I did talk with Karen to let her know I needed a bit more time to complete this and she was okay with it”. [ 14 ] On June 5, Ms. Osborn’s lawyer sent an email to Mr. Gagne stating that they would agree to no further adjournment and that “if we do not receive the completed Asset and Liability list from you by noon today, we will be proceeding to court tomorrow, June 6, 2017. Upon our attendance we will be seeking full legal costs, on a solicitor-own-client basis.” [ 15 ] The chambers judge who was presiding on June 6, 2017 noted Mr. Gagne’s absence and told the agent for Ms.

Osborn’s lawyer that he was not comfortable in dealing with the matter without an affidavit of service or some other proof that the matter was properly before the court on that date. In addition, the judge told the agent that he would not sign an order imposing a $50.00 a day penalty for late disclosure without, at the very least, being assured that the respondent had been made aware that such a penalty was

being requested. On June 6, Ms. Osborn asked for costs for that day of $500.00 (2:45:03 pm from the FTR recording of the hearing); an order for costs for June 6 was not eventually made part of the order for that date. The judge did, on the undertaking of Ms. Osborn’s lawyer to swear and file an affidavit on June 7 with respect to the background, approve an order requiring that: - Mr. Gagne provide Ms.

Osborn with all remaining outstanding disclosure by no later than June 12, 2017; - Failing which, a response to disposition for further matters of compliance shall include provisions for financial consequence with respect to delay; - Costs shall be spoken to on June 19, 2017 at Morning Chambers or such other day as the Court may direct; - The matter is adjourned to June 19, 2017. [ 16 ] On June 7, Ms. Osborn sent, by email to Mr. Gagne, a copy of the order of June 6. In the covering letter, Ms.

Osborn’s lawyer stated, amongst other matters : Please note that paragraph 2 sets out that if disclosure is delayed any further, financial penalties can be sought. The judge can set out a daily fee for late documents and set out that wages can be garnished if payments are not made, as stated on the bottom of the Notice to Disclose which was served upon you. [ 17 ] Later on June 7, Ms. Osborn sent to Mr. Gagne an additional email stating that Ms. Osborn’s RESP statement and 2016 income tax return were attached and that this completed her financial disclosure to Mr. Gagne. [ 18 ] On June 8, Ms.

Osborn's lawyer filed an affidavit sworn on June 7 and later fax-filed on June 12 which outlined the various communications between Ms. Osborn's lawyer's office and Mr. Gagne. The material attached to the June 7/8/12 affidavit discloses that, over time, Mr. Gagne had provided information in addition to the material set out above including: - what Mr.

Gagne had received as a result of his inquiries with CRA, including tax info back to 2012 and the info for doing his 2014-2016 taxes, together with a statement that he had not filed his income tax returns because he could not find an accountant that he could afford; - on May 12, he attached info from CIBC, which he described as his main account which has US and Canadian prepaid cards attached, and the history for his MasterCard from ATB which related only to a credit card with no account.

He indicated that, because his account and credit card with Scotiabank were in arrears, he could not use that bank's online services, but provided an estimate of the debt on the card and the negative balance in the account; he stated that he did not believe that he had used the Scotiabank account in the previous 6 months; - information that he did have RRSPs with the Royal Bank, but since those were taxable benefits received from his employer, he expected that the information was available to Ms.

Osborn from his tax information; - information about his mortgage, which was not requested in the Notice to Disclose; and, - a commitment to provide all outstanding disclosure by the end of May, 2017. [ 19 ] On June 12, 2017, Mr. Gagne sent an email to Ms. Osborn saying: Hello, I am back from out of country from training. While I was away, my office was able to provide me a copy of my 2016 T4. Please find attached. [ 20 ] On June 13, Ms. Osborn’s lawyer sent an email to Mr.

Gagne stating, in part, “If we have not received all disclosure by [noon on June 16, 2017] we will be forced to seek financial penalties as explained in our correspondence dated June 7, 2017. [ 21 ] On June 19, when this matter was before the court, the file available in court did not – understandably because of the impossibility of having the physical file updated with the most current physical filings - contain the June 7/8/12 affidavit or the supplemental June 19 affidavit. [ 22 ] Since the June 19 hearing, this court has had the opportunity of reviewing the affidavits filed by Ms. Osborn’s lawyer.

My reading of the affidavits, and of the attachments thereto, does not indicate that Mr. Gagne was ever told that, if he failed to provide a list of assets and liabilities by June 12, 2017, Ms. Osborn would ask the court on June 19 to impose a $50.00 a day penalty until the outstanding information was provided.

b) Regulatory [ 23 ] Rule 12.41(7) states that, in family law proceedings, if the respondent on a notice to disclose fails to provide disclosure within one month of being served, the court may: - order the respondent to provide the documents requested by a specified date; - draw an adverse inference against and impute income to the respondent and order the respondent to pay support in an amount the Court consider appropriate; - order the respondent to pay costs to the applicant in an amount that fully compensates the applicant for all costs in the proceeding, and,

- “may grant any other remedy the Court considers appropriate”. grant appropriate remedies. [ 24 ] The Federal Child Support Guidelines set out, in sections 21 and 22, potential penalties for an inadequate response to a request for information, including an order for costs “up to an amount that fully compensates the other spouse for all costs incurred”. [ 25 ] Rule 10.49 reads as follows: Penalty for contravening rules 10.49(1) The Court may order a party, lawyer or other person to pay to the court clerk a penalty in an amount determined by the Court if (

a) the party, lawyer or other person contravenes or fails to comply with these rules or a practice note or direction of the Court without adequate excuse, and (

b) the contravention or failure to comply, in the Court’s opinion, has interfered with or may interfere with the proper or efficient administration of justice.

(2) The order applies despite (

a) a settlement of the action, or (

b) an agreement to the contrary by the parties. 2. General principles relating to the application of Rule 10.49 [ 26 ] In a general way, litigants, including self-represented litigants, should feel that they can rely on the Rules of Court for procedural information about the justice system. Therefore, penalties for procedural misbehaviour which are not set out in the Rules are not, typically, imposed. No Alberta Rule specifically authorizes a daily fine. [ 27 ] However, Rule 10.49 is clearly designed to monetarily sanction misbehaviour. [ 28 ] The rule which current Rule 10.49 replaced, i.e.

Rule 599.1, was similar in some ways, and dissimilar in others, from the current rule. Those differences may assist in the

interpretation of Rule 10.49. For ease of reference, Rule 599.1 stated: 599.1

(1) Notwithstanding anything in this Part, where (

a) a party to an action, a counsel acting in respect of an action or any other person who is involved in an action fails, without an excuse or explanation that in the opinion of the Court is appropriate, to comply with these Rules or a Practice Note of the Court, and (

b) that failure to comply, in the opinion of the Court, has interfered with or may interfere with the proper or efficient administration of justice, the Court may order that party, counsel or other person to pay to the clerk a penalty in the form of costs as determined by the Court.

(2) In making an order under subrule (1), the Court may do one or more of the following: (

a) determine the amount of the costs; (

b) prescribe the time within which the costs are to be paid; (

c) prescribe terms or conditions with respect to the payment of the costs or any other matter respecting the making of the order.

(3) Without restricting the amount of costs that may be imposed under subrule (1), the Court in determining the amount of the costs to be imposed may take into consideration the amount of costs set out in

Schedule C.

(4) Once costs are ordered to be paid under this Rule, those costs are payable by the person on whom the costs were imposed (

a) whether or not any settlement was made in respect of the actions, and (

b) notwithstanding any agreement between the parties to the action or their counsel. [ 29 ] As can be seen, both rules stated that the penalty or costs award was to be paid to the clerk of the court rather than to the litigant. Indeed, the fact that this penalty is not to be some kind of award or indemnity to one of the litigants is emphasized by the provision that the sanction is to be applied independently of the parties’ wishes: see current Rule 10.49(2)(

b) which mirrors the former Rule 599.1(4)(b). [ 30 ] Both rules apply not only to parties but also to the lawyers for the parties. Rule 599.1 allowed an order to be made against any person if that person was “involved in an action”; the current rule allows an order to be made against any person who disobeys a rule, a practice note or a direction. [ 31 ] Each of the rules states that a penalty can be imposed for a failure of compliance with, or a breach of, the Rules or a Practice Note. The new rule adds “a direction of the court”.

While it is not clear if this “direction” must be in the form of an order, for the purposes of this application it is clear that an order of the court qualifies as a “direction”.

[ 32 ] Rule 599.1 provided a yardstick against which the penalty imposed under the rule could be calculated; that yardstick was the existing party and party costs tariff, or

Schedule C costs. (As will be seen from the cases mentioned below, monetary penalties awarded under Rule 599.1 tended to be relatively low.)

Schedule C does not now, and did not while Rule 599.1 was in effect, explicitly authorize any daily penalty for any type of misbehaviour.

The wording of Rule 10.49 is, however, sufficiently broad to allow the court to impose a daily penalty. [ 33 ] The Alberta Law Reform Institute’s Consultation Memorandum on Costs and Sanctions briefly mentioned Rule 599.1, saying that the rule should be retained in the new rules, due to its utility. [ 34 ] So far as I am aware, there is no other jurisdiction in Canada which has a similar provision in their Rules of Court. [ 35 ] At some point, it may be necessary to determine if the addition in Rule 10.49 of the power to impose a monetary penalty for breach of a direction from the court, coupled with the removal from that Rule of the previous monetary guideline, have created a situation in which Rule 10.49 is not materially different from Rule 10.52 which authorizes penalties for contempt of court.

Shelley J. linked the contempt and monetary penalty rules in Mella , at least to the extent that the public policy underlying both rules is to ensure that court orders are obeyed. In that context, as a result of the fact that it has been considerably broadened, Rule 10.49 may now impose the procedural safeguards which have been developed in the case law relating to the punishment for contempt; it is true, of course, that Rule 10.49 does not go as far as Rule 10.52 because it does not authorize imprisonment as a sanction, but a high “fine” can have relatively draconian effects.

Resort to Rule 10.49 may now require the equivalent of personal service of an application to impose a specific monetary penalty with a clear outline of what must be done to avoid the penalty. I note that the chambers judge who was sitting on June 6 indicated that he would not impose a daily fine unless the respondent had been advised of that jeopardy. [ 36 ] The

interpretation of Rule 10.49(1)(

b) on this application does, however, require an assessment of what is meant by an interference with the “proper and efficient administration of justice”. It is clear from the rule itself that “mere” failure to comply with a court’s direction does not justify a monetary penalty; if that had been the intention of the drafters, sub-paragraph (

b) would not have been added and any breach of a direction might attract a monetary penalty. As was noted in Meads , there has not been much case law interpreting either Rule 10.49 or Rule 599.1, especially in relation to the requirement, in both rules, that the breach or failure “interfered with, or may interfere with, the proper or efficient administration of justice”.

The judge in that case was dealing with litigants who contested the authority of the court; the judge was of the view that the ability to impose a fine for misconduct was appropriate in that case, and usefully noted that one advantage of a fine imposed pursuant to Rule 10.49 was that it did not affect the substance of the dispute. The types of litigant dealt with in that case, and in J.T ., i.e. Organized Pseudolegal Commercial Argument litigants and “recreational litigants” are, fortunately, not the usual type of litigant.

There is at least some case law dealing with the more usual type of litigant. [ 37 ] In Milfive , our Court of Appeal demonstrated the kind of problem that constituted an interference with the administration of justice justifying the imposition of a sanction: 3 The Chambers Judge gave extended oral reasons, which were tape-recorded, as is usual. Neither party thought to ask to have them transcribed, and the agreement as to contents signed by both parties omits them. We had three such cases this week in Calgary, necessitating last-minute transcription.

That caused this Court and the judges appealed from a good deal of inconvenience. We have mentioned this problem before in at least one reported decision. It is time to reinforce our sermons with penance. We rely on R. 599.1, but at this early stage we keep the amounts low.

Each side will pay to the Deputy Registrar in Calgary the sum of $150.00, and this will not be taxable as a disbursement in computing party-party costs in future. [ 38 ] Another example is provided by the appeal court’s decision in Klushin : 15 In the meantime, a slot in the first week of October was being occupied by this case, and it may be too late to find another case to fill it. The books had been distributed to the panel, and at least one Justice of Appeal had read them. 16 For over 25 years the evils of late adjournments of cases off the trial list have been well known.

A little reflection should show that it is worse to do that with appeals already set down to argue, since the Court of Appeal gives fixed dates, always reads the material ahead of time, and so never double-books. 17 It is for just such topics that Rule 599.1 was passed in 1996. The respondent plainly broke the Rules and Practice Notes respecting calling the general appeal list. The Court and the appellants have done unnecessary work.

Either the whole list has been delayed by an open useless half day, or some other litigants will have to rearrange their plans on short notice to fill it. 18 Two hundred and fifty dollars is a modest sum today. That is the amount of costs which the respondent must pay to the Registrar of the Court of Appeal within 15 days of the date of these Reasons.

No costs being sought by the appellants of the adjournment, none will be awarded to them. [ 39 ] In Trang , the problem was that the adjournment which the appeal court was forced to grant required that a different appeal panel would have to read the appeal materials.

That was considered to constitute an interference with the efficient administration of justice. [ 40 ] In Morin , Graesser J. discussed Rules 10.49 and 10.50 in relation to the imposition of a penalty on a lawyer who had commenced, and continued, legal proceedings without authority, characterizing the lawyer’s actions as both unauthorized and discourteous. However, as to the amount of costs, he added this: 52 Costs under Rule 10.50 are subsumed within the costs otherwise ordered under

Schedule C; if there is a tariff item a multiplier might be used; if there is no tariff item then the Court should come up with an appropriate amount. I do not see that costs under Rule 10.50 are an add-on in themselves, to be imposed in addition to

Schedule C. [ 41 ] Ms. Osborn relies on an order made by a judge in a special chambers hearing in which the judge ordered that all future

disclosure should be provided by both parties within 45 days of the request for disclosure being made and that “failure to provide the documents [requested] shall result in a $50.00 a day fine until all requested documents are provided”. However, no information other than the order itself is provided. In the absence of the context in which the $50.00 per day fine was ordered, the fact of the fine does not assist in elucidating the circumstances in which a fine is permissible or appropriate. [ 42 ] The relatively small number of decisions available on the

interpretation of both Rules 10.49 and Rule 599.1 does not yet allow us to establish reliable markers for the types of cases where an interference with the proper and efficient administration of justice can be found. 3. No daily fine can be imposed here [ 43 ] The regulatory provisions relating to penalties for failing to provide information in relation to child support obligations are inapplicable here: - it is Ms. Osborn who must pay Mr. Gagne child support; - since Mr. Gagne is the primary parent, his income is not necessary to calculate any off-set in Ms.

Osborn’s child support obligation; - in her Notice to Disclose, Ms. Osborn did not request any information relating to s. 7 expenses. [ 44 ] The first, and determinative, reason why Mr. Gagne cannot be required to pay Ms. Osborn a $50.00 daily fine is that Rule 10.49 which allows the imposition of a monetary sanction for failure to abide by a court’s direction states that the penalty will be paid to the clerk of the court. [ 45 ] The second reason is that there is no evidence on this application explaining how Mr.

Gagne’s failure to provide a list of assets and liabilities constitutes an interference with the administration of justice. This lawsuit is in its infancy; the only step that has been taken is this request for information; no pattern of misconduct has been established. The correspondence which Ms. Osborn’s lawyer has provided indicates that Mr. Gagne has, with one exception, attempted to provide the information requested; the exception relates to the list of assets and liabilities. The correspondence does also confirm that Mr.

Gagne has relatively frequently promised to finalize his disclosure but failed to meet his commitments. In any event, even with respect to the request for a list of assets and liabilities, Mr. Gagne indicated that he would be in a position to fill out the list during the week of June 12. I was dealing with this application in the week of June 19 th ; it appears that, as of that date, Mr. Gagne had yet again failed to provide the required list. [ 46 ] Of the relief claimed by Ms.

Osborn in her statement of claim, the list of assets and liabilities appears to relate mainly, if not only, to her request for an equal division of matrimonial property. The failure to provide information about assets and liabilities is, unlike the issue of income for support purposes, a gap which is difficult to fill by inference.

As suggested by Rule 12.41(7), if one party has some information about the employment or income of the party opposite, even in the absence of three years of income tax returns and assessments and re-assessments, a court can often make an adverse inference against the litigant opposite and deem that party to have a certain level of income for support purposes.

On the issue of matrimonial property, however, unless the party opposite swears to the existence of property acquired during the course of the marriage and the increase in value during the course of the marriage of property owned prior to the marriage, one spouse may have no realistic idea of the totality of matrimonial property in which they may have an interest. Accepting that as the problem which Ms. Osborn is facing relative to finalizing her claim, this is a problem which is unique to her rather than one which affects the administration of justice.

A remedy which is available to her to deal with this problem is to obtain an order that prevents Mr. Gagne from defending her claim for an equal division of matrimonial property; that might be a more proportional penalty for the failure to provide information in a specific dispute.

As Rooke A.C.J. pointed out in Meads , it is sometimes better to sanction misbehaviour by imposing a financial penalty rather than one which deals with the substance of the lawsuit; however, as Rule 10.53 which outlines punishments available for breach of court orders reminds us, in appropriate circumstances a court could, pursuant to Rule 10.53(1)(d)(iii) enter a judgment on behalf of an applicant. [ 47 ] The third reason that the court cannot impose a Rule 10.49 monetary sanction is that Mr. Gagne was not advised on that potential jeopardy. By email from Ms. Osborn’s lawyer, Mr.

Gagne was advised: The judge can set out a daily fee for late documents and set out that wages can be garnished if payments are not made, as stated on the bottom of the Notice to Disclose which was served upon you. However, reference to Form FL-17 indicates that neither of those remedies or penalties is set out in the Notice to Disclose. In her lawyer’s correspondence with Mr. Gagne, no reference was made by Ms. Osborn to Rule 10.49; nor was there any indication that a $50.00 a day fine would be requested. Nor was reference made by Ms. Osborn to the Civil Enforcement Act where Mr.

Gagne could learn about garnishment proceedings. [ 48 ] The only jeopardy of which Mr. Gagne was explicitly warned was that Ms. Osborn would be seeking an indemnity of costs on the June 6 th hearing. . 4. General principles relating to the award of costs higher than

Schedule C costs [ 49 ] While the various regulatory provisions set out above indicate that costs up to a full indemnity might be imposed for breaching a court’s direction, there is no requirement that a full indemnity be imposed. Indeed, the case law establishes that an award of costs is always in the court’s discretion. As opposed to the

interpretation of Rule 10.49, there is a great deal of case law on the type of situation in which it is appropriate to indemnify a litigant for costs. [ 50 ] In Meads , Rooke A.C.J. provided a useful outline of situations in which elevated costs, including solicitor-own-client, or indeed any level of costs higher than the

Schedule C tariff, may be imposed: see para. 597. In general terms, solicitor and own client costs, sometimes referred to as an indemnity, may be awarded for conduct which is 'reprehensible, scandalous or outrageous'.

5. Mr. Gagne’s failure to provide an assets and liabilities list is not a basis on which to impose elevated costs [ 51 ] Ms. Osborn has not established that Mr. Gagne’s conduct has been scandalous or outrageous: on the contrary, Mr. Gagne has provided most of the required disclosure, or at least that which he was able to provide. In relation to the mortgage information, Mr. Gagne provided more than the required disclosure. The disclosure was, admittedly, provided in dribs and drabs and in a disorganized manner.

This is not, however a situation in which there is evidence that the respondent has flouted his disclosure obligations. [ 52 ] From all of the material submitted in support of this application, it appears that the only item of disclosure which Mr. Gagne can provide but has not yet provided is a list of assets and liabilities in the form attached as

Schedule A to the Notice to disclose. In order to deal with Ms. Osborn’s need for that list, the court extends to July 17, 2017, Mr. Gagne’s deadline for providing that sworn evidence. If Mr. Gagne has not provided that list by July 17 th , Ms. Osborn will serve him with a notice to appear in court on a later date to show cause why a penalty which Ms. Osborn will describe to Mr. Gagne should not be imposed upon him. [ 53 ] In the result, only party and party, or

Schedule C, costs are awarded on this application. Mr. Gagne is ordered to pay Ms. Osborn costs of $500.00 for the June 6, 2017 appearance plus $500.00 for the June 19 appearance. [ 54 ] Ms. Osborn asks for garnishment of Mr. Gagne’s wages to ensure payment of the costs. Unfortunately, on this application Ms. Osborn has not provided the court with any information about Mr. Gagne’s income; it is therefore not possible for the court to establish a specific deadline by which costs should be paid. Without a deadline, garnishment proceedings presumably cannot be invoked.

I add that, knowing the practical difficulties occasioned by garnishment proceedings for both employer and employee, short-circuiting garnishment process is not typically appropriate. In the circumstances here, I will order the enforcement remedy proposed by Ms. Osborn’s lawyer as an alternative to garnishment, i.e. the order for a total of $1,000.00 in costs will be considered as a debt owed by Mr. Gagne to Ms. Osborn and will be paid to her out of Mr. Gagne’s share of the property division, after an equalization payment has been calculated by the parties. [ 55 ] As requested by Ms.

Osborn’s lawyer in a communication with the court, and in reliance on the effectiveness of emails exchanged by the lawyer’s office with Mr. Gagne during the course of these proceedings, the court orders that, henceforth, service on Mr. Gagne will be deemed good and sufficient if sent to the email address which Mr. Gagne has been using. Heard on the 19 th and 22 nd days of June, 2017. Dated at the City of Edmonton, Alberta this 11 th day of July, 2017. J.B. Veit J.C.Q.B.A. Appearances: Brant C. De Rudder, Driessen De Rudder LLP for the Applicant, Ms. Osborn Mark Richard Gagne on his own behalf