Mortson v Kminkova, 2021 ABQB 496

Court of Queen’s Bench of Alberta Citation: Mortson v Kminkova, 2021 ABQB 496 Date: 20210628 Docket: FL01 32658 Registry: Calgary Between: Ryan Erik Mortson Applicant - and - Katerina Kminkova Respondent _______________________________________________________ Endorsement on Costs of the Honourable Mr. Justice O.P. Malik _______________________________________________________ [ 1 ] This is my ruling on costs, arising out of my decision in Morton v Kminkova , 2021 ABQB 476 . I had originally proposed that as each of the parties met with mixed success, there would presumptively be no costs.

However, I indicated that I would, in the event the parties disagreed with my assessment, consider the parties’ submissions on costs. The Applicant asserts that as he was “substantially successful” and that he is entitled to enhanced costs under Calderbank principles. [ 2 ] The granting of costs in family proceedings is in the court’s discretion although I am guided by the Alberta Rules of Court , Alta Reg 124/2010, Rules 10.29(1) , 10.31 and 10.33 . The successful party is normally entitled to costs while the unsuccessful party is not.

I am also mindful of the following cases cited to me by the Applicant: Bruen v University of Calgary , 2019 ABCA 275 , DBF v BF , 2018 ABCA 108 , and SS v AS , 2021 ABQB 294 , and the parties’ written submissions.

[ 3 ] Having considered the parties’ submissions on costs, I disagree with the Applicant that he was substantially successful and I decline to award costs to either party. [ 4 ] The Applicant sought a determination regarding ongoing child support. He argued that there should be a straight set-off of the parties’ respective table amounts without any further adjustment considering the means, needs and other circumstances of the child as required by

section 9 of the Guidelines . [ 5 ] The Respondent was not strictly opposed to support being calculated on a straight set-off basis but argued that the Applicant is underemployed and receives income from his family and rental revenue from his girlfriend and that consequently, I should impute income to him pursuant to

section 19 of the Guidelines . [ 6 ] The Respondent brought a cross-application for retroactive

section 3 and 7 support commencing in January, 2019. The Applicant urged me not to award retroactive support but asserted that should I decide to do so, support should commence when the Applicant was given notice, May, 2020. [ 7 ] While I declined to find that the Applicant was under-employed and that he received rental income from his girlfriend, I ordered that support be paid. Further, I did not preclude the Respondent from addressing the issue in the future as she receives additional financial disclosure (what had been provided was too recent to provide an accurate assessment) from the Applicant.

On the basis that I dismissed the Respondent’s submissions that I impute income to the Applicant based on what she perceived as his under-employment, and rental income received from his girlfriend, I consider that the Applicant was successful on his application for support. [ 8 ] The Applicant asserted that ongoing support should be calculated on a pure set-off approach while the Respondent argued that I should assess the conditions, means, needs and other circumstances of each of the parties and of their child, pursuant to

section 9 of the Guidelines . The Respondent lost on this point although I did not consider her argument to necessarily be without merit. Consequently, I gave both parties leave to apply directly to

schedule a half-day Special Family Chambers application to address this issue more fully as I did not feel I had sufficient evidence regarding the child’s living conditions in each of the parties’ homes to embark on a fulsome assessment. On this question, I would consider the outcome to be a draw. [ 9 ] On the issue that occupied most of my decision, the Respondent succeeded with her cross-application for retroactive support. The Applicant argued that retroactive support should not be awarded or in the alternative, that retroactive support be ordered to the date the Applicant was given formal notice.

Ultimately, I ordered that retroactive support be paid and that it commence from the date of the parties’ separation, more than one year before the Respondent provided the Applicant with formal notice. [ 10 ] As for the issue of payment of retroactive and ongoing

section 7 expenses, the Respondent acknowledged in her Concise Letter and in oral argument that this issue was to be resolved by the parties’ Parenting Coordinator, a fact the Applicant did not concede until pressed on the issue during the parties’ oral hearing. On this issue, I consider the Respondent to have been successful. [ 11 ] In my view, both parties were equally successful.

I declare a draw on the questions for which there was simply inadequate financial or other information before me due to the recency of the parties’ separation: whether I should impute income to the Applicant owing to his family’s financial assistance, and whether an assessment of the conditions, means, needs and other circumstances of each of the parties and of their child, pursuant to

section 9 of the Guidelines justifies something other than a set-off of support. [ 12 ] I do not find anything objectionable in the Respondent’s conduct that justifies enhanced costs. Determined by written submissions. Dated at the City of Calgary, Alberta, June 28, 2021. O.P. Malik J.C.Q.B.A. Appearances: Dane T. Tousignant, for the Applicant, Ryan Erik Mortson

The Respondent, Katerina Kminkova, Self-represented