EGM v FDM, 2017 ABQB 788

Court of Queen’s Bench of Alberta Citation: EGM v FDM, 2017 ABQB 788 Date: 20171220 Docket: FL01 21135 Registry: Calgary Between: EGM Applicant - and - FDM Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.B. Nixon _______________________________________________________ I. Overview [ 1 ] This is a costs decision in a matrimonial case.

The sole issue before me prior to this costs application was whether there should be an adjustment to spousal support. [ 2 ] The husband was the substantive winner on that issue in the oral decision I delivered on January 15, 2016. At that time, I gave the parties permission to speak to costs within the next 30 days. [ 3 ] The parties negotiated the details that were to be included in the Order over a period of several months and counsel exchanged drafts of the Order dealing with the substantive issues.

[4] Ultimately, the Order was filed with both parties’ consent on June 17, 2016. It was dated January 15, 2016, the date of theoral decision. The filed Order stated that "[e]ither party is at liberty to speak to costs". It did not refer to the 30-day time frame mentionedin the oral decision. [5] Earlier, on March 10, 2016, the husband had offered to set his costs in the amount of $1,000. The wife did not accept hisoffer. The husband now seeks his costs in the amount of $3,500.

He has also asked this Court to consider double costs. [6] The wife argues that no costs can be awarded because the 30 day time period referred to in the oral decision has long past.There is no question that it is well beyond the 30 day time frame referred to in the oral decision. The question is the impact of the delay. III. Analysis [7] I reject the wife’s argument against a costs award for three primary reasons: (

i) the general rule is that the successful party isentitled to costs; (ii) the Court always retains an underlying discretion to award costs; and (iii) the Court also has an underlying discretionto extend time periods. A. General rule [8] The general rule is that the successful party is entitled to costs of the proceeding: Metz v Weisgerber, 2004 ABCA 151 atpara 17(g); see also V.L. v D.L., 2002 ABCA 43. Since the husband was successful in this case, the presumption is that he is entitled tocosts. B. Discretion to award costs [9] The costs of all proceedings are in the discretion of the judge.

This discretion is embedded in legislation and the AlbertaRules of Court.

The Court of Queen’s Bench Act, RSA 2000, c C-31, s 21 provides as follows: Subject to an express provision to the contrary in any enactment, the costs of and incidental to any matter authorized to be taken beforethe Court or a judge are in the discretion of the Court or judge and the Court or judge may make any order relating to costs that isappropriate in the circumstances. [Underlining added.] [10] There is no express provision restricting an award of costs in this case, thus the Court retains the discretion to award costs. [11] The discretion to award costs must be exercised in accordance with rules 10.29, 10.31, and 10.33: LDW v KDM, 2011 ABQB800 at para 10.

Rule 10.31 requires that costs be reasonable, proper, and appropriate in the circumstances.

Rule 10.33 sets out a list offactors the Court may consider in deciding whether to impose, deny or vary an amount in a costs award. [12] The exercise of discretion must be based on “rational and sound principles having regard to what is appropriate in all of thecircumstances of the case”: Meehan v Holt, 2011 ABQB 110 at para 24 citing MacCabe v Westlock Roman Catholic Separate SchoolDistrict No. 110, 1999 ABQB 666. [13] The Alberta Rules of Court also permit the court to extend a time period that is specified in an order or judgment: Rule13.5(2)(b).

The relevant Rule provides that an order to extend a time period may be made even if the period has expired: Rule 13.5(3). [14] Two cases support the Court’s exercise of discretion in circumstances akin to those found here: United Food & CommercialWorkers International Union (Local 280P) v Pride of Alberta (1997), (AB KB), 52 Alta LR (3d) 382 (QB) andDCR Strategies Inc v Vector Card Services LLC, 2014 ONSC 469. [15] In United Food, the court addressed the identical issue.

The court had indicated that if the parties did not agree on costs, theycould be spoken to within 30 days of the release of the decision. [16] Pride of Alberta (“POA”) was the successful party. It mistakenly thought it had been awarded $1,500 in costs. Consequently,it did not attempt to clarify the issue of costs within the 30 day time period. In the meantime, as the unsuccessful party, the Union closedits file. [17] Subsequently, the POA sought costs. The Union opposed the costs application on the grounds that the 30 day deadline hadpassed.

The Union argued that deadlines “have to mean something and should be enforced”: United Food at para 11. [18] The Court in United Food held that the 30 day limit was not, in itself, a costs decision.

It was merely a “deadline establishedto maintain the pace of litigation and to ensure that no materials, such as records of a hearing or trial, are destroyed until all aspects of thematter are concluded”: United Food at para 3. [19] The Court concluded that a successful party should only be precluded from seeking costs if the other party has sufferedsubstantive prejudice, or other special circumstances exist that create a good reason why a costs motion should not be heard: UnitedFood at para 18. [20] The Court in United Food went on to award costs to POA, but deducted $200 from the $1,500 costs award.

The $200deduction was to take into account the administrative prejudice to the Union of having to re-open a file that it had closed. [21] Similarly, in DCR Strategies, the Court indicated that the parties could submit argument on costs within 20 days of therelease of the written reasons. Neither party filed cost submissions within the time period.

[ 22 ] The Court in DCR Strategies then heard argument on whether the parties should be permitted to submit their costs arguments beyond the deadline. The Court held at paras 7-8: In my view, the parties to the motion should be given an opportunity to file their costs submissions beyond the deadline. There is no prejudice which cannot be compensated for by costs by affording the parties an equal opportunity to address the issue of costs.

The fact that neither party filed submissions prior to the deadline is not a basis to disallow the parties an equal opportunity to now make such submissions so that the issue of costs can be considered by the Court. [ 23 ] All of the above leads me to conclude that I can resolve this costs application even though it was brought beyond the 30 day deadline stated in my oral decision. IV. Conclusion [ 24 ] The husband seeks costs of $3,500.

As stated above, he previously offered to set his costs at $1,000, but the wife did not accept that offer. [ 25 ] In balancing all of the relevant factors, I find the appropriate costs award is $2,500. This amount is in keeping with a straightforward application of

Schedule C. I acknowledge the husband’s earlier offer to accept $1,000 in lieu of litigation over costs. Although the rejected offer could justify a greater costs award, I exercise my discretion and fix costs at $2,500. Heard on the 28 th day of November, 2016. Dated at the City of Calgary, Alberta this 20th day of December, 2017. D.B. Nixon J.C.Q.B.A. Appearances: Elizabeth L. Stewart of Soby Boyden Lenz LLP for the Applicant FDM for herself as Respondent