Feschuk v Feschuk, 2017 ABQB 734

Court of Queen’s Bench of Alberta Citation: Feschuk v Feschuk, 2017 ABQB 734 Date: 20171201 Docket: 1603 01742 Registry: Edmonton Between: Bradley Feschuk Applicant - and - Bernie Feschuk Respondent Corrected judgment: A corrigendum was issued on December 12, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of W.S.

Schlosser , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is the costs decision arising from a protracted fight over the family farm. The fight is still not over. It has spilled over into Judges Chambers. The central Order regarding the transfer of the farmland is presently under appeal. The matter relating to ownership of machinery has been referred to a judge in the event that oral evidence might be necessary.

Input costs were settled in court this morning. [ 2 ] As this appears to be the end of my involvement, the parties have asked for a costs disposition, which can be reviewed at the pending appeal, if necessary. [ 3 ] These proceedings were commenced by an Originating Application taken out by Bradley Feschuk. He sought: 1. ... an equal subdivision of the [farm] Property; 2. ... [a sale of] the Shared Equipment (as described) for no less than a total of two hundred twenty five thousand ($225,000.00) dollars, and to divide the net proceeds of such sale(

s) equally between the parties; 3. ... [retrieval of] the two fertilizer bins and extra sprayer tires (Shared Property) and the Sole Property (as described) under the supervision of the Royal Canadian Mounted Police;

4. ... costs on a solicitor/client basis to be deducted from the Respondent’s share of the sale of the Shared Equipment; and 5. ... such further and other relief as this Honourable Court deems just and appropriate in the circumstances. [ 4 ] The land owned by the two brothers as joint tenants was worth approximately $150,000 in 2013 and, more recently (June 9, 2016), assessed to have a market value of $316,000. If we add the value of the farm machinery to the other property in this lawsuit, the monetary stake for each of the parties is roughly half of $650,000; which would put the matter into Column 3 for the purposes of the Costs

Schedule in the Rules of Court . [ 5 ] I acknowledge that the Applicant wanted solicitor and client costs. I also acknowledge that feelings run high in this type of dispute because the personal value of what is being fought over is often far greater than the monetary value. [ 6 ] While I acknowledge that Bradley Feschuk was obliged to seek compliance with one of my earlier Orders from a judge, this is not litigation that would ordinarily warrant solicitor and client costs. Similarly, it would not, in my view, be appropriate to treat some relief in this action as essentially declaratory; thus making it a Column 1 matter. The costs should be payable on the basis of

Schedule C Column 3. [ 7 ] There were a large number of affidavits, examinations on affidavits and appearances resulting in ( inter alia ) the following Orders; referred to by filing dates, which are on the left: March 10, 2016 Order of Master Breitkreuz granted March 8, 2016: (

a) Allowing Bradley to pick up 15 bales, a truck and front end of air drill; (

b) Ordering examination of Bradley and Bernie Feschuk on Affidavits to date set; and (

c) Adjournment of application to April 8, 2016. March 30, 2016 Order (by Consent) of Master Wacowich granted March 30, 2016 ordering examination of Bradley and Bernie on Affidavits to date set, and adjourning the balance of the application to April 20, 2016. April 20, 2016 Order of Master Wacowich granted April 20, 2016 adjourning both applications sine die . May 24, 2016 My Order of May 5, 2016: (

a) Adjourning both applications to June 21, 2016; (

b) Requiring Bradley to serve on Bernie the expert opinion of Serecon (for land) and ordering Bernie to serve his rebuttal opinion within two weeks after the receipt of Serecon report; (

c) Ordering shared equipment (2 augers and a sprayer) tenders; (

d) Permitting Brad to seed the north and Bernie to seed the south portion of land, and Brad to account for benefit derived by Bernie from preparatory work performed by him on south portion; and (

e) Directing shared use of Augers. June 15, 2016 My Order of June 3, 2016 adjourning Bernie’s application to June 8. July 6, 2016 My Order of June 21, 2016: (

a) Ordering adjournment of application for subdivision of the lands and the application for sale and division of proceeds of equipment sine die; (

b) Granting Bradley Feschuk a Replevin Order to repossess the MacDon D40 Hay Header from Bernie Feschuk, and ordering Bradley to pay damages, costs and expenses sustained by Bernie as a result of the Replevin Order if Bradley is unsuccessful in action for recovery of Hay Header; (

c) Ordering Bradley to provide to Bernie security in form of undertaking to preserve property.

March 14, 2017 My Order of February 2, 2017 (now under appeal): (

a) Directing for partition and sale of Bernie Feschuk’s interest in Land to Bradley Feschuk; (

b) Permitting Bradley to purchase Bernie’s interest at fair market value; (

c) Requiring Bernie to provide his Affidavit outlining input costs by March 17, 2017; and (

d) Ordering that if parties are unable to resolve equalization costs they shall return to court within two months. There were some extension Orders following the March 2017 Order, that took us to today’s application. [ 8 ] The Order filed March 14, 2017, is presently under appeal. On March 23, 2017, Mr. Justice Clackson gave an interim order requiring compliance with the March 14 th Order; failing which the Respondent Bernie Feschuk was declared to be in contempt. [ 9 ] Also during this timeframe, the unhappy differences that had developed between Bernie Feschuk and his estranged wife, Lorna, came into play. Ms.

Feschuk sought to participate in the proceedings to the extent that she sought to attach whatever share of sale proceeds Bernie Feschuk was entitled to. This part of the dispute ultimately went to a judge for a decision about matrimonial property. [ 10 ] Orders were given April 20, 2017 and September 11, 2017, granting time extensions. The April 20, 2017, Order, which granted a time extension, was on a no-costs basis. The September 11, 2017, Order directed the parties to attend so that equalization payments and input costs could be dealt with. As noted, the issue of equalization costs was settled in court.

The final issue of ownership of machinery has been referred on. [ 11 ] Bradley Feschuk largely succeeded in obtaining the relief sought in his Originating Application; though rather than simply dividing the land (the parties could not agree on who should get which half after the boundary was determined) there was a mechanism for one to buy out the other. Bradley was ultimately successful with respect to the March 10 th

(2016) Order. The issue of costs relating to that Order were adjourned to April 8 th of that year but not ultimately dealt with, so I am going to treat those costs as being in the cause. [ 12 ] On March 30, 2016, an Order was given by consent extending the deadline on the March 10 th Order. In my view, the cost effect of that application and Order are neutral, and both sides should bear their own costs. [ 13 ] The April 20, 2016, Order arose as a result of an application brought by Bernie Feschuk.

That application was adjourned sine die and costs, too, were adjourned to an undefined date. [ 14 ] The May 5, 2016 Order dealt with some of the relief claimed in the Originating Application and gave directions about farming the land and the use of some of the contested equipment so that the land could be farmed in the summer of 2016. The application by Bernie Feschuk (noted above) was adjourned again. [ 15 ] Bernie Feschuk took out an application, returnable June 3 rd concerning a precision air tank. This application was adjourned again to June 8 th and (apparently) again until June 21 st .

The disposition of that application is unclear. June 21 st Bradley Feschuk was granted a Replevin Order for MacDon D40 Hay Header. Costs of that application were in the cause. [ 16 ] As noted, the key Order was dated February 24, 2017 and filed March 14, 2017. That Order provided: 1. The application for partition and sale of Bernie Feschuk’s interest in the Land to Bradley Feschuk is granted. 2. Bradley Feschuk shall purchase Bernie Feschuk’s half interest in the Land for Fair Market Value (as established in the Glen Doll expert report) plus 10%, totalling $173,800.

Sale of the Land is to close in 10 days from the date of this Order with the proceeds from the sale paid into Court. 3. Clear title of the Land shall be registered in Bradley Feschuk’s sole name and Bernie Feschuk’s wife Lorna Jean Feschuk agrees to remove the Lis Pendens from title. 4. Bradley Feschuk is to provide an affidavit detailing his input costs into the farm Land by March 3, 2017. 5. Bernie is to provide an affidavit outlining his input costs by March 17 th . 6.

If the parties cannot resolve equalization of input costs, they shall return to court but not later than two months from the date of this Order. 7. Copies of the affidavits on input costs and any notice of resolution of same are to be provided to counsel for Lorna Jean Feschuk. ... 9. Costs for this Application shall be in the cause. [ 17 ] That was the Order that went before Mr. Justice Clackson for contempt proceedings and is the Order now under appeal.

[ 18 ] The extension Orders of April 20 and September 11, 2017, do not attract costs. [ 19 ] The application filed October 6, 2017, brings us here today. The parties got directions, including the referral of the remaining issue to a judge – though not a procedural order sending it to trial, as originally requested. As noted, the application precipitated the settlement of the input costs. Today’s application brought mixed results. Each side shall bear its own costs for this application. [ 20 ] In

summary, Bradley Feschuk is entitled to costs of the Originating Application proceedings on Column 3; and the applications resulting in the following Orders: March 10, 2016, July 6, 2016 and March 14, 2017. [ 21 ] The parties have leave to address the question of disbursements, insofar as the costs of the Expert Report have not be dealt with, and for other disbursements such as land appraisal. Any residual costs issues should be dealt with either on the hearing of the appeal of the March 14, 2017 Order, or the final application relating to the ownership of machinery. [ 22 ] I am grateful for the

summary provided by counsel. Ms. Loparco may pick up her materials at the Masters Office. Heard on the 24 th day of November, 2017. Dated at the City of Edmonton, Alberta this 1 st day of December, 2017. W.S. Schlosser M.C.Q.B.A. Appearances: Anna Loparco Dentons Canada LLP for the Applicant Roger Stephens Simons & Stephens for the Respondent _______________________________________________________ Corrigendum of the Reasons for Decision of W.S. Schlosser, Master, Court of Queen's Bench of Alberta _______________________________________________________ At Paragraph 7, in reference to the Order filed May 24, 2016, the list format was changed from (d)(e)(f)(g)(

h) to (a)(b)(c)(d)(e).

Paragraph 20 has been revised as follows: [20] In

summary, Bradley Feschuk is entitled to costs of the Originating Application proceedings on Column 3; and the applications resulting in the following Orders: March 10, 2016, July 6, 2016 and March 14, 2017.