VLK v CJG, 2021 ABQB 513

Court of Queen’s Bench of Alberta Citation: VLK v CJG, 2021 ABQB 513 Date: 20210706 Docket: 4803-172947 Registry: Edmonton Between: VLK Plaintiff - and - CJG Defendant _______________________________________________________ Endorsement on Costs of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] These parties disagree on the appropriate disposition of costs arising from a one-week parenting trial, following which I gave a decision on parenting schedules as well as decision-making. [ 2 ] The Defendant father claims success and asks for costs of $100,000. He has submitted three draft Bills of Costs based on

Schedule “C” to the Alberta Rules of Court , Alta Reg 124/2010 [the “ Rules of Court ” ], ranging between $76,803.88 and $97,074.13. The Plaintiff mother also claims success at trial and therefore resists the payment of costs. In the alternative, she objects to any doubling of costs based on the Defendant’s formal or informal offers, as well as to the amounts claimed for experts’ fees.

The Rules [ 3 ] Rule 10.29(1) of the Rules of Court says that a successful party should generally receive an award of costs, payable by the unsuccessful party. Rule 10.31 further describes the wide scope of discretion of this Court in awarding costs. I can look to

Schedule “C” of the Rules of Court, which provides a tariff for various steps in an action but I can also award a multiple or a percentage of any of those costs or simply assess the “reasonable and proper costs” incurred by the successful party; Rule 10.31(1)(a). [ 4 ] In any event, Rule 10.33(

a) provides a list of things I may consider in making any costs award, which include the result, the importance and complexity of the issues and the conduct of the parties. [ 5 ] The main issues in dispute on this application are: (1) who was successful? (2) what is the effect of the Defendant’s formal and/or informal offers to settle? (3) should the Defendant have enhanced costs for the Plaintiff’s alleged delay and intransigence? and (4) how to deal with the experts’ fees? Success at Trial [ 6 ] After trial, I gave an oral judgment regarding parenting of these parties’ twin boys, who are 10 years old.

The Defendant was seeking equal shared parenting, specifically week on/week off with the boys alternating their time between parents after each school week. The Plaintiff had resisted this and continued to do so up to and throughout the trial. In fact, her insistence on maintaining some empirical advantage in parenting time was the subject of some of my comment following trial. [ 7 ] As I understand the Plaintiff’s argument on assessing the results of the trial, she maintains that she was successful because I also dealt with decision-making, not just with the division of parenting time.

These parties have a long and highly acrimonious history, post-separation. There was little hope that they would be able to cooperate in joint decision-making for these children, even if parenting time was finalized and even if only for major decisions. [ 8 ] As a result, the court-ordered expert psychologist, Dr. Susan Clark, who completed a PN8 report and testified at trial, suggested dividing the decision-making between the parties by subject matter and giving each of them decision-making authority within certain areas.

While I did not ultimately divide up those areas in the way suggested, I employed that approach. As a result, the Defendant became responsible for educational decisions and the Plaintiff for medical or health-related decisions. The children’s activities were further divided, with each parent having responsibility for choosing and paying for some activities. [ 9 ] Accordingly, the Plaintiff says that the Defendant’s request of shared parenting was actually rejected by me in favour of her proposal for parallel parenting.

That is not completely accurate. [ 10 ] First of all, the main point of contention throughout was the division of parenting time, with the Plaintiff apparently firmly resolute in rejecting equally-divided time. The apportionment of decision-making was suggested by Dr. Clark, not by the Plaintiff. Further, even at trial, the Plaintiff resisted the Defendant assuming responsibility for the boys’ educational decisions.

She wanted that to be time-limited with other areas carved out for her participation. [ 11 ] While I am beyond grateful that the trial decision has allowed the parties to move into a parenting arrangement with certainty, both for transition times and for decision-making, I cannot agree with the Plaintiff’s assessment that she was successful. In the main, that was the Defendant.

Offers to Settle [ 12 ] I agree with the Plaintiff that the formal offer of January 31, 2020 cannot be used to double all steps thereafter as it addressed only the parenting time and, even that, only in part as it made no mention of summer holidays or any other holiday time. [ 13 ] The Calderbank offer of October 21, 2020, however, did address all of those things and did so in a way that was virtually identical to my judgment.

In my view, in a family law matter where it can be very difficult to capture precisely the terms of a resulting judgment in a pre-trial settlement offer, consideration should be given to the substance of the offer, even if there are slight differences between the offer and the judgment. [ 14 ] I note that the range of costs recovery sought by the Defendant does not vary greatly whether one or either of the offers to settle are used to double some of the

Schedule “C” costs or not. I would opt for the Defendant’s Bill of Costs that included double costs from October 20, 2020 to and including trial, subject to my comments below. [ 15 ] The Defendant seeks costs of $100,000, implying that the difference between that figure and any of the Bills of Costs submitted would be “rounded up” because of the Plaintiff’s delay in getting the parenting matters to trial. [ 16 ] I agree that the Plaintiff’s initial trial strategy of calling many witnesses who had little to no admissible evidence to give was

flawed. However, as I remarked in my decision, the Plaintiff pivoted on that strategy once the trial began, which could not have been easy for her. Doing so allowed all of us to focus on the matters – and only on the matters –which concerned the best interests of these children. While I have sympathy for the time and the costs expended by the Defendant, I do not think it appropriate to augment costs beyond what is reflected in accounting for the aforementioned informal offer. Expert Fees [ 17 ] As my judgment made clear, I relied upon Dr. Clark’s report and her testimony.

There is no question in my mind that the Defendant is entitled to include his portion of her fees ($16,750) in his recoverable costs. The fees associated with Dr. Seitz ($10,237) and Dr. Fong’s review of Dr. Seitz’ report ($15,918) are somewhat more difficult to assess as neither was proffered at trial. [ 18 ] The Defendant says that these reports were all done or required to be done to try and settle or advance parenting matters throughout.

While the parties may disagree about the content or opinions in those reports, I accept that, at the time they were commissioned, one or both parties thought they were necessary. My post-trial review of the file showed over 15 interim parenting orders made before resolution at trial. This matter was case-managed comprehensively and repeated efforts to resolve matters through Judicial Dispute Resolution were unsuccessful. [ 19 ] I cannot know exactly why so little progress was made in that time, but the Plaintiff’s resistance to the Defendant’s requests and Dr.

Clark’s recommendations continued to and through the trial. While I have declined to augment costs based on the litigation behaviour of either party, I am prepared to include all expert fees in the Defendant’s recovery, rather than second-guess the utility of those reports at the time those fees were incurred. Conclusion [ 20 ] Accordingly, the Defendant is entitled to the payment of costs in the amount of $92,753.38, payable forthwith. Heard on the February 24, 2021 Dated at the City of Calgary, Alberta this 6 th day of July, 2021 . M.H. Hollins J.C.Q.B.A. Appearances: The Plaintiff for herself. Ms.

Michele Reeves for the Defendant