RD v LWD, 2019 ABQB 966

Court of Queen’s Bench of Alberta Citation: RD v LWD, 2019 ABQB 966 Date: 20191217 Docket: 4801 159377 Registry: Calgary Between: RD Plaintiff - and - LWD Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice L. Bernette Ho _______________________________________________________

[ 1 ] On September 12, 2019, I released Reasons for Decision in this matter (reported at 2019 ABQB 703 ) addressing matrimonial property, as well as retroactive and ongoing child and spousal support issues (the “Decision”). The parties appeared before me on December 3, 2019 to address the terms of the judgment roll and costs. Time did not permit oral submissions on costs, but both parties submitted detailed written submissions.

These are my reasons relating to costs. [ 2 ] Rule 10.29 of the Alberta Rules of Court provides that a “successful party” is entitled to a cost award against the unsuccessful party, subject to the Court’s general discretion under rule 10.31. Rule 10.31 then outlines different forms of a Court-ordered cost award and rule 10.33 outlines what I should consider in making a cost award.

Who was the successful party? [ 3 ] The parties are not able to agree on who was the “successful party” was at trial. [ 4 ] The Alberta Court of Appeal has addressed how the term “successful party” is to be interpreted in family matters. In DBF v BF , 2018 ABCA 108 at para 13 , the Court wrote: …Success in family matters means substantial success, not absolute success: Katrib v Katrib , 2008 ABQB 162 at para 9 , 90 Alta LR (4 th ) 59; Gardner v Gardner , 2008 ABQB 750 at para 30 , 444 AR 288.

Costs are not normally awarded on an issue-by-issue basis: Hogarth v Rocky Mountain Slate Inc , 2013 ABCA 116 at para 12 , [2013] 12 WWR 732. [ 5 ] I have reviewed Decision and the parties’ written submissions in detail. Having regard for the positions advocated by each of the parties at trial, I consider that the mother was substantially successful. I have arrived at this conclusion based on the following. (

a) I disagreed with the father’s argument that the mother should not be permitted to advance a claim for retroactive spousal and child support. (

b) The mother was successful in arguing that GL remained a child of the marriage. (

c) Having taken the position that GL was no longer a child of the marriage, the father also denied that any retroactive child support was owed. I awarded retroactive child support to the mother. I do not accept the father’s argument that there was “mixed success” on this issue simply because I did not award the mother full value of her claim. Had the father been successful, nothing would have been awarded at all. In my view, the mother was successful in obtaining a retroactive child support award. (

d) Similarly, the mother was also awarded ongoing child support for GL until further Court order. Just because I did not award the Guideline amount of child support does not, in my view, make this a “mixed” result, as argued by the father. (

e) With respect to ongoing spousal support, I do not accept the father’s argument that he was successful on this point because he has always recognized that spousal support must be paid and because the mother was not awarded spousal support near the upper range. At trial, he asked that I award $3,900 for a 4-year term. In the end, I awarded $4,500 per month payable indefinitely. In my view, the mother was successful on this issue, even though I declined to award her lump sum spousal support. (

f) With respect to valuation of the father’s book of business, each of the parties argued they were successful. The mother argued she was successful on this issue because I ultimately accepted the valuation figure advanced by the mother’s expert, Mr. Manek. The father argued that he was successful because, even though I agreed with Mr. Manek’s valuation, I also agreed with the father that tax treatment of the book of business had to be taken into consideration and that mathematically, my end figure was closer to that advocated by the father.

I also accepted that $175,000 should be used as a set figure for the determination of spousal support on an ongoing basis in order to avoid “double dipping” issues. With respect to use of $175,000 as the father’s salary for ongoing support, this was agreed upon between the parties’ experts at trial. As for the valuation of the book of business, I also note that during argument, the mother’s counsel acknowledged that Mr. Manek’s valuation should be tax adjusted, but proposed a lesser tax rate than what I considered appropriate.

I also rejected the father’s argument that a net present value adjustment had to be made to the future sale price of the book of business. On balance, I consider that the mother was more successful in relation to the determination of the value to be ascribed to the father’s book of business. (

g) With respect to household contents, the parties largely arrived at an agreement on the distribution of household items, except that the father argued that he should receive an additional $25,000. The father explained that since the mother obtained an exclusive possession order, he has only been inside the matrimonial home to assist with GL so the $25,000 accounted for items that he had forgotten about that should have been divided as matrimonial property. I rejected the father’s request. [ 6 ] Comparatively speaking, the father was successful on the following issues at trial. (

a) The father successfully argued against a retroactive spousal support award for a number of reasons, including because the mother withdrew a significant amount of money from her pension at the time of separation. (

b) The father successfully proved a $100,000 pre-marital exemption. (

c) The father successfully argued that advance cash distributions previously ordered by the Court should not be considered at all in the determination of matrimonial property issues. [ 7 ] In arriving at my conclusion that the mother was substantially successful at trial, I specifically reject the father’s argument that he was more successful if one considers the issues from a monetary perspective. I also reject any suggestion that the father was successful where the parties were able to reach agreement on how the issue should be addressed, or where the issue was withdrawn by the mother.

How much should be awarded to the mother in costs? [8] The parties agree that Column 4 of

Schedule C should be applied. [9] Although I have determined that the mother was substantially successful, rule 10.33 allows me to consider a number offactors in making a cost award, including whether the conduct of a party was unnecessary, or unnecessarily lengthened or delayed theaction or any stage or step of the action. I am also permitted to consider a party’s denial of or refusal to admit anything that should havebeen admitted, as well as any other matter related to the question of reasonable and proper costs that I consider appropriate. [10] In addition to that addressed in the

section above, these are some additional factors I have considered in setting the amount ofcosts payable to the mother. [11] At paragraphs 149 and 150 of the Decision, I outlined the reasons why I was not ascribing any weight to the loss of incomereport prepared by Cara Brown. Although the mother’s counsel was able to establish the report’s relevance to an issue at trial, I still didnot find it helpful to my deliberations and note that the report was prepared at significant expense.

Economic loss reports have not beenrequired since the Supreme Court of Canada’s decision in Moge v Moge, (SCC), [1992] 3 SCR 813, and I do notconsider it reasonable to require the father to pay the disbursement associated with Ms. Brown’s report or the trial time required topresent this report. [12] The mother also argued against the father’s claimed $100,000 exemption. In my view, the father’s evidence on this point wasparticularly clear and overwhelmingly convincing.

It would have taken the father considerable effort to gather his records back to thetime of his investments in the early 1990’s and organize his evidence regarding the purchase and sale of their earlier matrimonial home.Conversely, the mother indicated at trial that she had no recollection of the financial circumstances around the purchase of the parties’matrimonial home, and as I noted at paragraph 75 of the Decision, there was no serious challenge to the father’s testimony on theclaimed exemption.

In my view, the mother’s position on this point, and her continued opposition to the father’s claimed exemption evenafter hearing the evidence adduced at trial, was unreasonable. [13] Other than the foregoing, I am not prepared to find that either party or their counsel was responsible for taking an undueamount of time during the trial. [14] I also note, that at the opening of trial, the mother withdrew her requests for relief in relation to a number of matters, includingher request for an accounting of the father’s testamentary trust, as well as her claim to the father’s inheritance, the joint bank accountsheld by the father and the children, and the RESP funds still held in the name of the children.

While this did have the effect of reducingthe issues to be litigated at trial, the late withdrawal of these claims resulted in the exhibit binders containing a number of irrelevantdocuments. I also accept the father’s submission that a lot of time and effort was spent preparing for these issues to be litigated, and Inote that there are claimed disbursements related to these issues. [15] Finally, I must address the formal offers served by the father.

I am not prepared to conclude that the father has “beaten” any ofhis formal offers, and therefore, I have not considered the father’s formal offers in setting the amount of costs to be awarded to themother. I would have to apply assumptions in valuing certain matrimonial property in order to conclude in favour of the father and thatwould be inappropriate. For example, in my Decision, I expressly rejected the lump sum valuation ascribed by the father to the mother’spension, particularly since there was no expert evidence adduced on this point.

I am not prepared to now assign a notional value to themother’s pension in order to arrive at the monetary value of the father’s formal offers. [16] In the end, I am not prepared to require the father pay the mother’s bill of costs in the amount of $129,907.03, inclusive offees, disbursements and applicable tax and other charges. I exercise the discretion afforded to me pursuant to rule 10.31 to award a lumpsum of costs payable by the father to the mother. I consider $85,000 to be reasonable and proper costs, and award such to the mother. Heard on the 3rd day of December, 2019.

Dated at the City of Calgary, Alberta this 17th day of December, 2019. L. Bernette Ho J.C.Q.B.A.

Appearances: Richard B. Hajduk for the Plaintiff Elizabeth E. Stock for the Defendant