Ironstand v Prior, 2021 ABQB 267

Court of Queen’s Bench of Alberta Citation: Ironstand v Prior, 2021 ABQB 267 Date: 20210408 Docket: FL14-02169 Registry: St Paul Between: Deserae Helen Ironstand Applicant - and - Timothy James Prior Respondent _______________________________________________________ Reasons for Decision regarding costs of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ [ 1 ] This is an application for costs following the respondent’s non-appearance and the applicant’s partial success at an oral Emergency Protection Order (EPO) hearing.

For reasons which follow the application is dismissed. [ 2 ] The background is of an original EPO made on July 12, 2020. That order was confirmed prior to the oral hearing but on the basis that a child of the relationship was removed from the original July 12, 2020 order. [ 3 ] The oral hearing proceeded in the unexplained absence of the respondent, although his counsel was present. The EPO was confirmed. The applicant’s application at the oral hearing to add a child to the EPO was dismissed.

No finding was made that the respondent’s non-appearance was frivolous or otherwise an abuse of the court’s process under s 13 of the Protection Against Family Violence Act RSA 2000, c P-27 ( PAFVA ).

[ 4 ] The applicant seeks costs for the oral hearing appearance. Those costs are sought in the sum of $4,725 representing

Schedule C claims for a Contested Application ($675), preparation for trial or

summary trial ($2,700) and attendance for the first half- day of trial ($1,350). [ 5 ] Through counsel the respondent objects to costs, or alternatively argues costs be based on mixed success, mindful of the fact the applicant sought, unsuccessfully, to add the child to the order. [ 6 ] Both parties referred to Lenz v Sculptoreanu , 2016 ABCA 111 and to Jama v Jama , 2016 ABQB 379 (per Veit J). [ 7 ] The court in Jama noted that for the policy reasons articulated in Lenz costs are rarely appropriate in proceedings taken pursuant to the PAFVA .

Nevertheless, the court awarded $500 in costs to a respondent in circumstances where the applicant inexplicably failed to appear at a confirmation hearing. [ 8 ] The court in Jama referred to Siwiec v.

Hlewka , 2005 ABQB 684 in which Slatter J (as he then was) ordered $500 in costs to a respondent but on the basis, at para 25, that the use of the Emergency Protection Order in that case was for a collateral purpose. [ 9 ] Not referred to by the parties was MacNeil v Fithen , 2016 ABQB 449 (per Veit J). [ 10 ] In MacNeil at paras 20-24 Veit J considered the authority in Lenz and concluded costs were not appropriate even though the applicant Ms MacNeil was successful. The court reasoned as follows: [20] Ms.

MacNeil was successful in having the EPO confirmed; nevertheless, I do not think it appropriate to award her costs. [21] In Lenz, our Court of Appeal observed: We do not consider it appropriate to create any impediment which would cause vulnerable victims to avoid seeking an EPO when they are at immediate risk of family violence, merely for fear that they may later have to pay adverse costs. [22] Not only is this, therefore, now the law in Alberta it is, if I may say so with respect, sensible. [23] The problem arises because of the asymmetry of awarding costs to a successful applicant but denying them to a successful respondent: the starting presumption of fairness is that equality is equity. [24] EPO proceedings are, by definition, without notice proceedings.

The issuance of an EPO typically results in the expulsion of the respondent from their residence and the imposition of an immediate impediment to the respondent’s parenting.

These consequences, together with the stigmatizing effect of the order itself, and the lengthy delay before the court can provide a viva voce hearing to resolve credibility issues, are important ways in which the objectives of the Act are met; withholding what amounts to nominal costs does not undermine the statutory objectives. [ 11 ] I appreciate that the outcome in MacNeil appears out of sync with the earlier decision in Jama , and in the much earlier decision in Siwiec .

Nevertheless, on balance and on the level of principle I prefer the decision and outcome in MacNeil . [ 12 ] MacNeil is also consistent with the reasons of Jones J in Denis v Palmer , 2016 ABQB 54 at paras 19-20 , in which the court commented, in light of s 13 of PAFVA , that it was not reasonable for the court to use its discretion to order costs to effect a penalty where the Legislature had not, to date, seen fit to do so. [ 13 ] Denis was cited approvingly by the court in Lenz as it undertook its own consideration of costs in the EPO context, at paras 43-45: [43] A court considering costs relating to the review or appeal of an EPO may consider under Rule 10.33(1)(

c) of the Alberta Rules of Court the “importance of the issues” in an individual matter. “Assessing the importance of the issues requires consideration of the objectives the Act seeks to achieve and the importance society attaches to protecting its vulnerable members from family violence”: Denis v Palmer at para 15 . The objectives of the Act must also be weighed in this matter when making a determination on costs, to be balanced against other relevant factors such as the result of the appeal, its complexity, and the liability and conduct of the parties. [44] The objectives of the Act are set out in its

preamble and are to prevent family violence and protect vulnerable victims by providing an immediate period of safety in their own home.

These objectives are pressing in our society and outweigh other considerations relating to costs, including the appellant’s success on appeal. [45] We do not consider it appropriate to create any impediment which would cause vulnerable victims to avoid seeking an EPO when they are at immediate risk of family violence, merely for fear that they may later have to pay adverse costs. [ 14 ] For these reasons and on the authorities before me, I exercise my discretion not to award cost in the circumstances. [ 15 ] Had I been inclined to order costs, I would have done so on the basis of an award of $675, cut by half to recognize divided success on account of the applicant’s unsuccessful attempt to have the child included in the order that was given. [ 16 ] The parties will bear their own costs of the costs hearing which was conducted by written submissions only.

Heard on the 12 th day of January, 2021, further written submissions January 17, 2021 Dated at the City of Edmonton, Alberta this 8th day of April, 2021. Peter Michalyshyn J.C.Q.B.A. Appearances: Jennifer A. Smith Lakeland Law Group for the Applicant Nduka Ahanonu Duke Law Office for the Respondent