SS v AS, 2021 ABQB 294

Court of Queen’s Bench of Alberta Citation: SS v AS, 2021 ABQB 294 Date: 20210419 Docket: 4801 169820 Registry: Calgary Between: SS also known as SK Plaintiff - and - AS Defendant _______________________________________________________ Ruling on Costs of the Honourable Mr. Justice Bryan E.

Mahoney _______________________________________________________ Opening [ 1 ] This is my ruling on allocating costs in this high conflict parenting and child support case involving an 8-year-old child. [ 2 ] The Court heard a three-week trial commencing on March 2, 2020 to March 16, 2020 when it was halted due to the Court Covid pandemic lock down. The trial resumed on October 26, 2020 and completed on October 30, 2020. After the trial, there was other communication with counsel to settle the minutes of the judgment and receive written submissions on costs.

My Reasons for Judgment deciding the parenting and child support issues can be found at SS v AS , 2020 ABQB 810 and Supplemental Reasons at SS v AS , 2021 ABQB 38 .

[ 3 ] As to costs, I find that AS, the Defendant (“the Father”) was substantially more successful than the Plaintiff, SS (“the Mother”). He is entitled to a costs order. As to the type of order, the Father seeks enhanced costs from the Mother, based on factors such as his pre-trial written offers and the Mother’s litigation conduct. [ 4 ] Before addressing the Father’s claim for enhanced costs, as stated, I find that the Father was by far more successful when assessing the parenting and child support terms set out in the Reasons for Judgment.

The parenting terms accorded with both the Without Prejudice Interim Parenting Order of Justice C. Anderson, granted June 18, 2018 and with the recommendations in the Practice Note 8, Bilateral Parenting Assessment (dated February 5, 2018) and court testimony of Dr. Susan Clark. Regarding retroactive and ongoing child support, the Father was also successful in obtaining rulings that imputed income to the Mother and directed her to pay retroactive and ongoing child support to the Father.

Applicable Legal Rules [ 5 ] In Alberta, the system of awarding costs is based on the premise that, subject to the court’s discretion, the loser pays. [ 6 ] In principle, a successful party should not have to bear the cost of establishing their rights against an unsuccessful claim by the other party. A further justification for the rule is the deterrent effect on parties who chance litigation knowing there is a risk that losing the case means covering their own costs and the costs of the successful party.

Finally, and equally important, the risk of paying costs encourages litigants to make out-of-court settlements. Although cost awards are meant to deter meritless claims and encourage parties to settle, they are not meant to deter all litigation or compensate the winner completely. [ 7 ] Given the issues to be decided in family law cases, there is not always a clear winner or loser. Litigation costs are typically a major barrier in all lawsuits, particularly so in family law where parties are unable to sustain the high costs of ongoing litigation.

Nonetheless, the Court of Appeal in Metz v Weisgerber , 2004 ABCA 151 , stated that strong public policy reasons and decided legal authority compels a court to not treat costs differently in family law cases than in other cases. [ 8 ] Rule 10.33 of the Alberta Rules of Court sets out a list of considerations to be taken into account when courts make costs rulings including money amounts: 10.33

(1) In making a Costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper Costs that the Court considers appropriate.

(2) In deciding whether to impose, deny or vary an amount in a Costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) a party’s denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party’s defence from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct; (

h) any offer of settlement made, regardless of whether or not the offer of settlement complies with

Part 4, Division 5. Settlement Offers [ 9 ] Settlement offers are important when fixing costs. In general, parties refusing a settlement offer will suffer costs consequences if the eventual judgment is more damaging to them than the other party’s pre-trial settlement offer. Not all offers to settle carry the same weight. Rule 10.33 (

h) expressly permits a Court to consider any offer for settlement in the course of making a costs

award, not just a formal offer under Rule 4.24. Depending on the circumstances, informal offers can influence costs ruling. [ 10 ] Over the course of this matter, and after the completion of the Practice Note 8 Report of Dr. Clark (dated February 5, 2018) the Father and Mother exchanged settlement offers.

In fact, by the first day of the trial, virtually “on the courthouse steps”, they were able to settle the issues of matrimonial property and spousal support. [ 11 ] The most recent settlement offer extended by the Father to the Mother is dated February 28, 2020 shortly before the commencement of the Trial on March 2, 2020. The Father’s offer proposed the following: a. The Father have parenting time with the child for 9 consecutive days, followed by the Mother having parenting time for 5 consecutive days; b. Child support continue to be payable by the Mother to the Father; c.

No spousal support be payable by the Father to the Mother; and d. Each party to retain any matrimonial property currently held in their possession. [ 12 ] The Mother submits that she made three settlement offers over the course of this matter. In these offers and throughout these proceedings, the Mother has always sought primary care of the child. Alternatively, if not granted primary care, she maintained that at a minimum there should be shared parenting with retroactive and ongoing child support payable to her by the Father.

Neither of her settlement proposals were successful. [ 13 ] In considering the Father’s settlement offer of February 28, 2020, I find that offer was more favourable to the Mother than the trial outcome found in the Reasons for Judgment and Supplemental Reasons.

In the key areas of parenting and retroactive/ongoing child support in the Judgment, the outcome is more favourable to the Father than his February offer to the Mother. [ 14 ] In considering the Father’s February, 2020 offer as to content, timing, genuineness and the eventual outcome and complexity of the trial, I find these are factors in his favour when deciding costs and adjusting the Alberta Rules of Court ,

Schedule C tariff amounts. I note that the Legislature, as of May 1, 2020 has amended the tariff amounts under

Schedule C to reflect the inflation factor since the tariffs were set in 1998. I also recognize that legal costs come out of the budget of the parents thereby affecting the available funds to support the child. [ 15 ] The Father seeks $41,770.00 in costs for legal fees calculated under column 1,

Schedule C of the Rules. Under the same column the Mother submits the costs for legal fees should be set at $30,720.00. Where the parties mainly differ on legal fees concerns awarding costs for interim applications and rulings where the presiding judge did not address costs. [ 16 ] Under Rule 10.29(1), as a default position, where the judge does not address costs, a successful party to an interim application is entitled to costs subject to some conditions, particularly the discretion of the court.

Upon the court deciding an interim application, it is best if the presiding judge makes a reasonable and proper costs order then and there. This avoids the difficulty for the subsequent trial judge trying to reconstruct how things looked at the time of the interim application in a lengthy, drawn out, high conflict family case. [ 17 ] Therefore, to save further hearing costs and looking at the substantive merits of the Father’s case and his entitlement to costs, I set the costs for legal fees at $36,000.00.

For the reasons set out in paragraphs 13 and 14 above, there will be a 25% costs enhancement making the total costs for legal fees $45,000.00. Conduct of the Mother [ 18 ] The Father submits that the misconduct of the Mother in this litigation also entitles him to enhanced costs. He points to the Mother’s many unsuccessful applications, lack of cooperation and compliance in moving the matter along, serious unfounded allegations to the Police and Child Welfare and last-minute acceptance of spousal support and matrimonial property offer after his counsel had spent time to prepare these issues for trial.

The Father also refers to paragraphs 57 and 58 of the Reasons for Judgment where I explained why I found the Mother’s trial evidence unreliable. [ 19 ] The Mother responds by submitting that in fact it was the Father who did not cooperate. She submits that it was her who made settlement offers in 2019 that were met with refusals and insistence on going to court.

Any appearance of lack of cooperation on her part was due to poor communication and legal process confusion when she was temporarily a self-represented person trying to retain another lawyer. [ 20 ] A court may award enhanced costs to the successful party on account of blameworthy prelitigation or litigation conduct. A party “whose litigation conduct, viewed as a whole, demonstrates blatant disregard for ... the rights of other parties ... engage[s] in blameworthy litigation conduct”.

Oslanski v Oslanski , 2021 ABCA 68 . [ 21 ] To find the Mother acted with “blatant disregard” of the rights of the Father, I would need to find convincing evidence of conduct such as maliciousness, bad faith, unfair dealing, or reprehensible conduct on her part. The trial evidence indicates that the mother’s conduct exhibited a personality disorder that appears to have at times influenced her desperate actions in pursuit of “winning”. However, in context, I find such conduct does not, in law, rise to the level necessary to award enhanced costs for misconduct.

Apportionment of Costs [ 22 ] The Father submits that any award of costs should be apportioned 60% for the issue of child support and 40% for parenting.

His concern is that the Mother could declare bankruptcy to avoid payment of a costs award. Obtaining a support judgment related to child support arrears and costs survive a discharge from bankruptcy. The Mother argues that there should be no apportionment for the issue of child support since the bulk of the trial dealt with parenting. [ 23 ] The issue of parenting and child support are unavoidably linked. The court must first decide parenting then, using the Child Support Guidelines, set any claim for retroactive and ongoing child support based on parental guideline incomes.

Sometimes parties only ask the court to decide parenting and leave the issue of child support to be resolved amongst themselves. This was not the case here. Although more in-court time was spent on parenting, more out-of-court time was spent on counsels’ lengthy written calculations that were made exhibits at the trial.

Both Counsel submitted detailed documentation of parenting times, spread-sheet calculations, guideline table calculations, historical court orders, transcripts and written submissions that took many hours of preparation by counsel and ample review by the court before a child support ruling could be made. [ 24 ] I apportion the costs at 50% for parenting and 50% for retroactive and ongoing child support. Bill of Costs [ 25 ] Within the context of the above reasons including the factors in Rule 10(33),

Schedule C, and the case authorities submitted, I have reviewed the draft Bill of Costs prepared by counsel for the Father (Tab H Written Argument of Father filed February 12, 2021) and the draft Bill of Cost prepared by counsel for the Mother (Tab I Written Argument of Mother filed February 22, 2021). Decision [ 26 ] In making this cost ruling, among other factors, I have considered the submission by the Mother that her ability to pay is limited. Her actions speak otherwise.

Her failure to except a reasonable settlement offer, her ongoing aggressive misguided conduct toward the Father, childcare workers, teachers and other professionals, and her in court manner, paint a picture of a party with no concern for the cost of litigation and the consequences to her of an unsuccessful trial outcome.

As stated in paragraph 79 of my Reasons for Judgment the mother is well-educated with a solid C.V. and has a proven ability to earn a decent income. [ 27 ] The Father will have costs as follows: ▪ Fees: $36,000 + 25% enhancement = $45,000; ▪ Disbursements: shall be according to “Disbursement” column in the Father’s draft Bill of Costs with the following adjustments: • Print, copy and fax charges: $4,500.00; • Practice Note 8 Bilateral Parenting Assessment of Dr. Susan Clark dated February 5, 2018 is denied; • Other charges ($10,000.00 claimed) are denied; ▪ GST allowed where applicable on fees and disbursements.

Determined by written submissions. Dated at the City of Calgary, Alberta this 19 th day of April, 2021. Bryan E. Mahoney J.C.Q.B.A. Appearances: Joy Dukeshire for the Plaintiff Rupert N. Joshi

for the Defendant