RVW v CLW, 2021 ABQB 546

Court of Queen’s Bench of Alberta Citation: RVW v CLW, 2021 ABQB 546 Date: 20210716 Docket: FL01 28628 Registry: Calgary Between: R.V.W. Applicant - and – C.L.W. Respondent _______________________________________________________ Endorsement on Costs of the Honourable Mr. Justice O.P. Malik _______________________________________________________ I.

Introduction [ 1 ] In RVW v CLW 2021 ABQB 531 , I ordered that the mother return the parties’ child into the father’s custody in accordance with a Final Decree of Divorce issued by the District Court of Harris County, Texas on May 3, 2021, by no later than noon on August 1, 2021. [ 2 ] The parties have provided me with written submissions regarding costs. [ 3 ] The father seeks costs on a full indemnity basis in the amount of $15,389.07 or alternatively, enhanced costs under

Schedule C, Column 5 of the Rules with a multiplier to be applied. [ 4 ] The mother argues that the appropriate measure of indemnification is between the standard 40-50% of the father’s costs which should be set off against outstanding support owing by the father pursuant to the Alberta Court of Appeal’s order dated July 9, 2019 and other costs owing by the father which arise out of the parties’ family proceedings in Texas. [ 5 ] On the issue of costs, the parties proceed on the basis (with which I agree) that I am to determine costs arising out of this application only and not with resect to any other facet of the parties’ lengthy proceedings. [ 6 ] In my decision, I canvassed the factual matrix, the history of court proceedings and I outlined my rationale for ordering the child’s return to Texas.

I do not repeat these here. [ 7 ] For the reasons that follow, I award the father costs on a full indemnity basis with respect to this application. I decline to offset these costs against any amounts which the mother says the father owes. II. Costs [ 8 ] The granting of costs in family proceedings is in the court’s discretion and pursuant to Rules 10.29(1), 10.31 and 10.33. The successful party is normally entitled to costs while the unsuccessful party is not.

In approaching the issue of what a party’s proper indemnification should be, I am guided by the Alberta Court of Appeal’s decision in McAllister v Calgary (City) , 2021 ABCA 25 . [ 9 ] Pursuant to Rule 10.29(1), a successful party is prima facie entitled to costs from the unsuccessful party. In determining what amount of costs should be awarded, the court considers those factors enumerated in Rule 10.33 which include the following: - each party’s success: Rule 10.33(1)(a);

- the amount claimed and recovered: Rule 10.33(1)(b); - the importance of the issue being litigated: Rule 10.33(1)(c); - the complexity of the action: Rule 10.33(1)(d); - the apportionment of liability: Rule 10.33(1)(e); - the conduct of a party that shortened the action: Rule 10.33(1)(f); and - any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [10] Following its consideration of Rule 10.33, the Court is directed to proceed to Rule 10.31 which grants the court broaddiscretion to craft an award that is reasonable and proper: Rule 10.31(1)(a); or that is appropriate in the circumstances: Rule 10.31(1)(b);or that is a combination of both. [11] In awarding reasonable costs pursuant to Rule 10.31(1)(a), the court can award costs on one or more of the following grounds: - with or without refence to

Schedule C: Rule 10.31(3)(a); - an amount equal to a multiple, proportion or fraction of the amount set out in any column of

Schedule C: Rule 10.31(3)(b); - costs to be paid with respect to a particular issue, application or proceeding: Rule 10.31(3)(c); or - costs to be paid on the basis of a percentage of all, or part of the successful party’s assessed costs: Rule 10.31(3)(d). [12] Rule 10.31(1)(

b) allows the Court to award “any amount” that it considers appropriate in the circumstances including but notlimited an award of costs on the basis of an indemnity for a party’s legal fees or a lump sum instead of, or in addition to, assessed costs. [13] There is no presumption that costs should be awarded on the basis of the appropriate column of

Schedule C as this would notalways produce a costs award that is reasonable. (McAllister at paras 53-56). While

Schedule C provides a rough ballpark of whatreasonable costs might approximate in some contexts,

Schedule C should be looked at as one of a number of tools rather than as thedefault mechanism for determining reasonable costs. [14] Generally speaking, the purpose of a reasonable and proper costs award pursuant to Rule 10.31(3)(

a) is to provide thesuccessful party with partial indemnification of its costs. In McAllister, the Court of Appeal confirmed that a 40-50% level ofindemnification provides a “reasonable guideline upon which the level of indemnification implied by the phrase “reasonable and propercosts” may be measured under the Rules”. (McAllister at para 51). [15] If a trial judge awards costs on the basis of a percentage indemnity, then either an assessment officer or a judge shouldconsider the reasonableness of the legal services performed and the amounts charged for those services (McAllister at para 46).

Finally,an assessment of the reasonableness of legal costs must also consider Rule 10.2(1). [16] Solicitor-client costs are rarely ever granted. However, they may be appropriate where one of the parties has engaged in“reprehensible, scandalous or outrageous conduct” (Young v Young, (SCC), 1993 4 SCR 3 at p 134), or where a factualfinding has been made that there was “intentional misconduct during the litigation” (Weatherford Canada Partnership v ArtemisKautschuk and Kunstoff-Technik GmbH, 2019 ABCA 92 at para 14, and see Pillar Resource Services Inc. v PrimeWest Energy Inc.,2017 ABCA 19 at paras 1,5-8 and 75).

The merit-worthiness of the application is in itself not a proper basis for making an award on asolicitor own client basis (Young at p 134). [17] In Jackson v Trimac Industries Ltd, (AB KB), 1993, 138 AR 161 (recently applied in JWS v CJS, 2021ABQB 411 at para 12), this Court enumerated those rare and exceptional circumstances at paragraph 28 where awarding costs on asolicitor-client basis is a justified departure from granting costs on a party-party basis: 1. circumstances constituting blameworthiness in the conduct of the litigation by that party; 2. cases in which justice can only be done by a complete indemnification for costs; 3. where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issueof fact or law which required these lengthy, expensive proceedings, where the positively misconducting party was "contemptuous" of theaggrieved party in forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his; 4. an attempt to deceive the court and defeat justice, an attempt to delay, deceive and defeat justice, a requirement imposed on theplaintiff to prove facts that should have been admitted, thus prolonging the trial, unnecessary adjournments, concealing materialdocuments from the plaintiffs and failing to produce material documents in a timely fashion; 5. where the defendants were guilty of positive misconduct, where others should be deterred from like conduct and the defendantsshould be penalized beyond the ordinary order of costs; ... 9. an attempt to delay or hinder proceedings, an attempt to deceive or defeat justice... (legal citations removed). [18] In considering the factors enumerated in Rule 10.33(1), I find that the father was entirely successful in his application (Rules10.33(1)(a)(

b) and (e)). In my view, the father’s application, requiring a consideration and recognition of U.S. proceedings and court

orders, the granting of an order returning the parties’ child, and the application of the Extra-Provincial Enforcement of Custody Orders Act , RSA 2000, c. E-14 and the Convention on the Civil Aspects of International Child Abduction (the “ Convention ”) adopted by the International Child Abduction Act , RSA 2000, c. I-4 , was important in terms of the issues being litigated ( Rule 10.33(1)(c)) and was relatively complex ( Rule 10.33(1)(d)) when compared with other family matters typically seen in morning Family Chambers.

The parties were required to provide this Court with written submissions, Affidavit evidence and make oral argument on an expedited basis. This application was therefore also significantly more costly than other matters regularly appearing in morning Family Chambers ( Rule 10.33(1)(g)).

Generally, the factors which I must consider as part of my analysis of Rule 10.33(1) weigh in the father’s favour. [ 19 ] In assessing those factors set out in Rule 10.33(2) and the “rare and exceptional” circumstances enumerated in Trimac , I find that the child’s wrongful abduction by the mother (which is now the second wrongful abduction) can only be described as willful, blameworthy and without any lawful basis.

The mother’s conduct is particularly troubling as it involves the wrongful abduction of a child across an international border to a country she knows the father cannot visit. [ 20 ] The mother’s concerns regarding the child’s welfare while in the father’s care and the father’s parenting suitability, her assertions that the father has destroyed or disposed of her belongings or has otherwise failed to provide her with health care, housing and other supports, are matters that should be addressed by the Texas courts which clearly have jurisdiction over the parties’ family proceedings.

In removing the child from Texas, the mother purposefully acted against the child’s best interests and in defiance of the various decisions of the Texas courts, the terms of a Mediated Settlement Agreement (the “Agreement”) whereby she agreed that the child would not be removed from Texas and the previous decision of the Alberta Court of Appeal which held that the child’s habitual residence was in Texas and that parenting issues should be dealt with by the Texas courts. [ 21 ] In my view, the mother’s conduct is contemptuous.

In her actions, she has shown a determination to defeat the father’s legitimate parenting rights and to ignore the jurisdiction of the Texas courts, particularly where the unfavourable rulings of the Texas courts do not suit her. I find that the factors set out in Rule 10.33(2)(a)(d)(

f) and (

g) weigh in the father’s favour and that the mother’s actions comprise those rare and exceptional circumstances described in examples 1-5 and 9 in Trimac which justify a departure from the granting of costs on a party-party basis. [ 22 ] As a result of the mother’s behavior, the father had no choice but to bring this application, the costs of which he should not have to bear. The mother’s repeated child abductions must be deterred and require the imposition of a penalty that is beyond the ordinary order of party-party costs. III.

Disposition [ 23 ] Having considered the application of the Rules regarding the granting of costs, being mindful of the court’s exhortations that granting costs on a full indemnity basis should only be done in rare and exceptional circumstances and having referred myself to the list of examples justifying an award of solicitor-client costs provided for in Trimac , I find that this is an appropriate case where the father shall, in respect of this application (and not with respect to the parties’ litigation more generally) be fully indemnified for his assessed costs on a solicitor-client basis.

The father shall have his costs assessed by an assessment officer in accordance with Rule 10.34. [ 24 ] The mother says that any costs she must pay the father should be offset against monies she says the father owes her in respect of: i. unpaid support that the Alberta Court of Appeal ordered the father to pay; and ii. the cost of the mother’s pressure washer and trailer valued at $10,780.00 which the Texas Court ordered the father to return. [ 25 ] I decline to do so.

First, as I outlined in my previous decision, the father asserts that he has fully discharged his support obligations pursuant to the Alberta Court of Appeal’s Order and that the terms of the parties’ Agreement confirm this.

Given the conflicting evidence and what appears to be an acknowledgement in the Agreement that the father has fully complied with his support obligations, I am not satisfied that he is in breach of the Alberta Court of Appeal’s Order. [ 26 ] Second, I will leave it to the Texas Court to deal with, and enforce, the mother’s allegations of non-compliance arising out of its order as it pertains to the return of the pressure washer and trailer.

In any event, I have no evidence regarding the mother’s allegations regarding these items other than counsel’s submissions and it would be inappropriate for me to make any findings of fact on this point. [ 27 ] In the event that this is not a case for solicitor-client costs, I would in any event have awarded multiple times

Schedule C, column 5 costs against the mother. Written submissions received June 30 and July 7, 2021. Dated at the City of Calgary, Alberta, on July 16, 2021.

O.P. Malik J.C.Q.B.A. Appearances: Sasha R. Joshi for the Applicant, R.V.W. Joshua Wasylciw for the Respondent, C.L.W.