RRQ v SCH, 2021 ABQB 402

Court of Queen’s Bench of Alberta Citation: RRQ v SCH, 2021 ABQB 402 Date: 20210521 Docket: 4813 006665 Registry: Ft. McMurray Between: RRQ Plaintiff - and - SCJ Defendant _______________________________________________________ Ruling on Costs of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] In July 2021, I conducted a week-long parenting trial with the parties.

Following the trial and before my decision, I made some directions about interim parenting and encouraged the father to have one-on-one time with his son, which was something it was clear his son craved and valued. I gave a lengthy oral decision on August 28, 2020. In that decision, I found that a shared parenting regime was in the best interests of their 13-year-old son, despite his reluctance to stay at his father’s residence and despite his mother’s resistance to sharing parenting.

[ 2 ] It is not necessary for me to repeat the details of that trial. It was obvious from the evidence presented by the parenting expert at trial that the boy needed the support of both parents to succeed, that counselling was needed for the boy, as well as reunification therapy.

I directed that both of those processes should occur, with the reunification therapy at the father’s costs, at least on an up-front basis. [ 3 ] There were delays in the reunification therapy process and by the time it was completed and the therapist being in a position to make further recommendations, the father concluded that he was no longer up to the “fight” and that he would back off from parenting and leaving contact and visits to the boy. As a result, a consent order was recently granted giving the mother sole parenting and decision- making.

The father will continue to pay child support and will have contact with the boy in the boy’s discretion. [ 4 ] At the time of the consent order, the mother’s lawyer made it clear that she was seeking costs of these proceedings. I had not ruled on costs following my decision at trial, and asked the parties to make written submissions to me on the subject. [ 5 ] I now have those submissions, and am in a position to rule on costs. Positions [ 6 ] The mother seeks party-party costs on Column 1 of

Schedule C of the Rules of Court . Fees total $20,935 and disbursements are $1,720.80. GST of $1,097.19 is claimed. [ 7 ] I accept that the amount claimed is a fraction of the actual legal costs incurred by the mother as she pursued a matrimonial property claim, sought spousal support and child support, and resisted the father’s claims for shared parenting and ultimately primary custody. [ 8 ] The mother argues that the father was responsible for most of the discord, by involving Child and Family Services.

That investigation resulted in their son being removed from her care and placed in his father’s care for a number of months in 2019. In the fall of 2019, the parties agreed on a shared parenting arrangement, but as the mother notes in her submissions, that never materialized as the son refused to go to his father’s house on most occasions. [ 9 ] That led to a number of interim applications and case management meetings. [ 10 ] The mother argues that during this interval, the father and his new partner conducted a public campaign to vilify the mother and her family.

The mother engaged in her own public campaign against the father’s new partner. [ 11 ] Despite the shared parenting order, the son did not see his father from December 19, 2019 until after the trial in the summer of 2021. [ 12 ] The mother places the blame for this on the father, including delays in arranging and paying for the counselling I directed in my August decision.

She blames the son’s poor relationship on his father on the father’s unwillingness or inability to spend time alone with his son, rather than always including his son with his new extended family activities. [ 13 ] She claims that the father’s ultimate abandonment of his claims for parenting time with their son demonstrates that she was the successful party. She also points to the father’s failure to pay child support and to difficulties obtaining disclosure in a timely way. [ 14 ] The father argues that this is a case where both parties should bear their own costs. He argues that most of Ms.

Flett’s arguments are based on the father’s post-trial conduct such as not spending one-on-one time with the son, not paying child support, not being diligent in pursuing or paying for counselling and reunification therapy, and ultimately changing his position. [ 15 ] Mr. Jones further argues that the August 28 decision should be treated as a final order such that only conduct to the time of the trial should be considered. He notes that the mother was not successful in resisting the father’s claim for ongoing shared parenting, so she was not successful.

He says it is arguable that it was the father who was successful, as his statement of claim in this matter sought shared parenting with a set-off in child support, and that is what he was granted. Case Law [ 16 ] Ms.

Flett for the mother references a number of cases in support of her position for costs: Adams v Adams , 2011 ABQB 812 (costs in family matters are no different than in other civil matters); Metz v Weisgerber , 2004 ABCA 151 (costs in custody cases go to the successful party); and YAP v Supramanian , 2006 ABQB 37 (a party that is largely or substantially successful can successfully claim costs). [ 17 ] Mr. Jones for the father references: 1022049 Alberta Ltd v Medicine Hat (City of) , 2006 ABQB 208 (the ordinary practice of the court is to consider only conduct before during and within the proceedings at issue).

Analysis [ 18 ] In the vernacular, the general position on costs in civil litigation, including family litigation, is “loser pays”. That is clear from Rule 10.29 (cited by Ms. Flett): 10.29(1) A successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party, and the unsuccessful party must pay the costs forthwith, notwithstanding the final determination of the application, proceeding or action,

subject to (

a) the Court’s general discretion under rule 10.31, [ 19 ] This has been a high conflict matter from beginning to end. The parties themselves have suffered emotionally through this, and their dispute has caused fractured relationships between the father and his children. The parents have fought over virtually everything. The trial before me was intended to deal only with parenting of the youngest child, with the other outstanding issues: child support, retroactive child support, spousal support and the division of property outstanding.

There was a general understanding that if there was time, other issues might be dealt with. [ 20 ] There was time only to deal with ongoing child support as the parties could not agree on what the mother’s income had been up to the time of trial, and whether additional income should be imputed to her. A second trial in the fall of 2020 was intended to deal with the financial issues. [ 21 ] The parties resolved those issues before that trial, and all that remained, as I understand it, are parenting issues relating to the youngest child.

I had directed counselling and at the review in November, it was clear that reunification therapy was required as the child was resistant to spending time with his father. The father was slow paying the necessary retainer for the reunification therapy, and it proceeded. Just before a formal report was submitted by the therapist, the father announced that he had essentially given up and would consent to the mother having sole parenting and decision-making. [ 22 ] At the trial, SCJ was not the winner.

It is not surprising that both parents take a somewhat different view of their own conduct than does the other parent. In my August 2020 decision, I made it clear that both parties bore responsibility for the dysfunctional relationship between the boy and his father. None of the experts suggested that the father was not a fit and loving parent, and they all emphasized that the boy loved his father.

Both parents misbehaved during the litigation: the mother by doing nothing to prevent the son’s rejection of his father; the father by his public vilification of his son’s mother and other actions designed to hurt the mother. [ 23 ] Essentially, there was no winner at trial. The mother was unsuccessful in limiting the father’s parenting by giving decision- making on his time to their son. The father was unsuccessful, as his position going into the trial was that he needed to be the primary parent to limit the mother’s opportunities to alienate him from their son.

He was only able to maintain what had been agreed to in the fall of 2019: shared parenting. [ 24 ] It is noteworthy that in one of the case management meetings following the ineffectiveness of that order, the case management judge warned the mother that if she did not make the father’s parenting time happen, she might face loss of custody of the child.

The father’s claim for primary parenting was not, in these circumstances, frivolous, as nothing changed between that case management meeting and trial. [ 25 ] To the end of the trial, there is no basis for the mother to declare herself to be the winner and thus entitled to costs. The father did not seriously pursue a claim for costs himself, and argued only that he should not be liable for the mother’s costs. [ 26 ] I agree with that position. No costs are awarded to the end of the trial. [ 27 ] Following the trial, there was a court appearance in November.

Rather than the hoped-for result that the father-son relationship had improved and shared parenting was happening, nothing had changed. The boy was refusing to go to his father’s and even though the mother made him go, the boy frequently left and returned to her home.

As a result, reunification therapy was ordered. [ 28 ] While the father was indeed slow in paying the necessary retainer, and the therapy was delayed and made more difficult because of the Covid pandemic, the mother cooperated and attended the necessary sessions and made sure their son did so too. [ 29 ] The therapist report was not a vindication of the mother, nor an endorsement of the father. It presented a long, difficult and uncertain (and very expensive) road to possible reunification.

In those circumstances, the father essentially gave up. [ 30 ] In my view, his decision was one that was likely in their son’s short-term best interests. There is an end to the conflict and tug of war and accusations, and an end to their son being in a place he did not want to be. [ 31 ] The father paid all of the considerable costs of the reunification therapy. I think that is sufficient contribution on his behalf.

At best, all the mother might be entitled to would be the somewhat lengthy conference in November, which led to the reunification therapy, and then a brief appearance to present the consent order that had been worked out at the end of the therapy process. [ 32 ] I note Mr. Jones’ arguments concerning whether the August decision amounted to a final order. I do not need to deal with those arguments as costs are always in the discretion of the trial judge. I declared no winner in August, and I declared no winner in November.

It was the father who abandoned the fight in March rather than pursue the course of action recommended by the therapist. Trying to reunify a child with his estranged father was the goal of the August decision, because it was determined then that it was in the child’s best interest to have a strong and healthy relationship with his father. SCJ did not “win” because that did not happen. [ 33 ] The post-August period involved steps and appearances that should not involve a cost award for or against either party.

Conclusion [ 34 ] In the end, each party will bear their own costs of all proceedings before me. [ 35 ] This decision is not intended to vary or vacate any cost awards that were made along the way by the case management judge or other judges who heard applications. As well, I did not deal with child support in any particularly contested way and the trial did not resolve any of the contentious financial issues between the parties.

[ 36 ] If the father has not been paying his child support, that is a matter for MEP or further court proceedings. I assume that the parties resolved any cost issues relating to child support arrears, spousal support and matrimonial property when they settled those issues in the latter part of 2020. This decision is not intended to vary or vacate any agreements previously made by the parties. Heard on the 18 th day of March, 2021. Dated at the City of Ft. McMurray, Alberta this 21 st day of May, 2021. Robert A. Graesser J.C.Q.B.A.

Appearances: Michael Jones, Stringam LLP for the Plaintiff (Father) Corie Flett, Muessle Flett Law LLP for the Defendant (Mother) Kathleen S.V. Linton, Linton Law Office for the Child