SF v NG, 2021 ABQB 210

Court of Queen’s Bench of Alberta Citation: SF v NG, 2021 ABQB 210 Date: 20210318 Docket: 4801-171337 Registry: Calgary Between: SF Applicant - and - NG Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice M.H.

Hollins _______________________________________________________ [ 1 ] The Applicant Mother brings this application under Rule 12.36 of the Alberta Rules of Court for the advance payment of costs to fund her continued representation in these proceedings. [ 2 ] This application was on the morning Family Chambers list but the Father’s Affidavit in Response, although filed, was not available on the morning of chambers. I reserved in order to find that Affidavit. I also allowed Mr. Onorferychuk the opportunity to respond to the after-court submissions of Father’s counsel.

The Issue [ 3 ] The parties have two children, now 10 and 14 years old. Since the parties separated in 2016, the Children have been in the Father’s care. The Mother’s relationship with the rest of the family appears to have been extremely troubled, with a long history of government interventions, law enforcement involvement and mental health issues.

The Mother has twice sought supervised access since 2016 but those applications have been dismissed. [ 4 ] The Mother says that she intends to advance the issues of parenting and division of matrimonial property to trial and needs the advance costs paid in order to allow her to ready the matter for trial. Her counsel explained that her Legal Aid coverage is exhausted and no further coverage is possible. She asks for a payment from the Respondent Father of $6,500 immediately and a further $5,000 before trial. [ 5 ] The application is dismissed for the reasons that follow.

The Law on Advance Costs [ 6 ] The test for an award of advance costs, set out in VMH v JH , 2020 ABCA 389 at paras 13-21 , has three parts: 1. Is the applicant impecunious to the point where she would be unable to proceed further without an advance award of costs; 2. Does the applicant have a prima facie case for the relief sought?; and 3. Is it the type of case that warrants an award of costs? Impecuniosity [ 7 ] The Mother says she has no income apart from the $1,200 per month she receives in spousal support.

The Father denies that the Mother is impecunious and accuses her of filing numerous false financial statements, including previously omitting her ownership in a company called TF Services and the disclosure of existing bank accounts. He says that she lives with another person, pays no rent and arrived to Questioning last summer with expensive accessories. [ 8 ] Neither party cross-examined the other on their respective Affidavits. While I appreciate that time and money do not always allow for this in the context of a busy Chambers practice, it leaves me with no really clear picture of the Mother’s finances.

She filed no budget of her own or any information of how she currently meets her expenses. [ 9 ] Further, the Father is adamant that he has no ability to contribute to the Mother’s legal costs at this time. His Affidavit details approximately $400,000 in matrimonial debt which he is attempting to address. He has never received child support from the Mother.

While neither party has provided comprehensive financial information, I cannot conclude that the “playing field” is so unlevel to warrant the Father paying the Mother’s costs, particularly when his financial constraints are related to their joint debts and the lack of child support paid by the Mother; Lakhoo v Lakhoo , 2015 ABQB 357 at para 57 [ Lakhoo ]. Prima Facie Case [ 10 ] While the burden on an applicant under Rule 12.36 is not high, it is difficult to see the Mother’s prima facie case in this action. She says that she wants to apply, again, for visitation with the Children.

While completely understandable, she points to no evidence of a change in circumstances that would, legally or practically, allow this Court to revisit its numerous refusals of visitation in the recent past. [ 11 ] The Children are represented by their own lawyer but she had no instructions from them for this Application. She advises that she understands the Children are resuming counselling this month and is hoping to speak with their counsellor and with the Children themselves, which requires the Father’s permission.

The Father deposes that the Children expressly do not wish to see their Mother and react very badly to any discussion thereof. [ 12 ] Further, the parties do not agree on whether there is matrimonial property that would warrant a trial. The Mother seems to believe so and wants further discovery of the Father on that issue. She says that personal property of hers was left with the Father, who in turn, details his eventual sale of that property to satisfy the storage costs and other matrimonial debt.

The Father says there is no other property and has, as mentioned, deposed to assuming all the remaining matrimonial debt. [ 13 ] Because the bar on this arm of the test is low and because there is a presumption of division of matrimonial property, including matrimonial debt, there may be a prima facie case for proceeding. However, practically, there is no compelling evidence suggesting that a significant change in parenting is imminent and parties do not generally proceed to trial, spending money on lawyers, in order to divide their debt.

While I would not dismiss the Mother’s application for advance costs on this ground alone, it is not a strong argument for her. Nature and Stage of the Litigation [ 14 ] Lastly, I am to consider the type of case for which costs are sought. Within that, I assume I am also to consider the stage of

litigation at this time. While the Mother is seeking costs to prepare for trial, this matter does not appear to be on the verge of readiness for trial. The parties do not agree on whether Questioning is complete, nor what disclosure is forthcoming and when. [ 15 ] Justice Gates, in Lakhoo , supra , made it clear that an application for advance costs that is unsuccessful at one stage may not necessarily be unsuccessful at a later stage of proceedings; Lakhoo at para 57 .

While I appreciate that, without immediate funding, the Mother may need to navigate the next steps of this case without representation, I do not see that as unfair or even disadvantageous to her. [ 16 ] I am suggesting that she clarify her objectives and return to Family Docket Court. As these parties may now qualify for Resolution Counsel, perhaps that will allow them to meet with a third party regarding whether a trial is necessary and/or realistic and if so, to at least give some directions to the parties regarding disclosure.

If the matter does proceed towards trial, the Mother may choose to re-apply for advance costs at a later date. [ 17 ] The better alternative, suggested by the Mother, would be to proceed to some form of alternate dispute resolution as soon as possible. If the Mother is unrepresented, the parties could meet with Resolution Counsel or book successive Early Intervention Case Conferences through Family Docket Court. If a binding mediation/arbitration is required, the parties could investigate the Court’s

schedule or consider private mediation/arbitration, in which case at least the Mother could reduce the costs needed to participate in that process and perhaps resubmit a clearer funding request. Conclusion [ 18 ] Consequently, the Mother’s application for an advance payment of costs by the Father is dismissed. [ 19 ] There are no costs to either party of this application. While the Father was successful, I am not convinced that a further costs award would punish the Mother for seeking a way to continue to prosecute her action. Heard on the 11 th day of March, 2021.

Dated at the City of Calgary, Alberta this 18 th day of March, 2021. M.H. Hollins J.C.Q.B.A. Appearances: Mr. R. Onoferychuk, for the Applicant Mother Mr. C. Johnson, for the Respondent Father Ms. C. Fox, for the Children