TAM v MOG, 2021 ABQB 699

Court of Queen’s Bench of Alberta Citation: TAM v MOG, 2021 ABQB 699 Date: 20210901 Docket: FL03 56523 Registry: Edmonton Between: TAM Applicant - and - MOG and AV Respondents Restriction on Publication Identification Ban – See the Family Law Act ,

section 100 . By Court Order, no person shall publish or broadcast information that may identify the Child involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that the decision may be published. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.S. Feth _______________________________________________________

[ 1 ] MOG requests that I re-open a costs award made in a proceeding under the Family Law Act , SA 2003, c F-4.5 ( FLA ) so that a Formal Offer to Settle and another settlement offer may be considered. For the reasons to follow, I decline to re-open the award. Background [ 2 ] TAM and MOG came before me to resolve a longstanding contest about MOG submitting to DNA testing to determine the parentage of a child. The parentage dispute and the request for a DNA test had consumed more than 2 ½ years of litigation.

I granted permission for DNA testing to be conducted in accordance with s 15 of the FLA and gave directions to streamline TAM’s request for child support if MOG’s parentage was established: TAM v MOG , 2021 ABQB 351 . [ 3 ] After DNA testing showed that MOG was very likely the child’s biological father, TAM proceeded with a Desk Application for a declaration of parentage, child support, financial disclosure and costs. TAM requested enhanced costs on the basis that MOG had needlessly complicated the litigation.

She also sought double costs relying on two Formal Offers to Settle tendered in accordance with Rule 4.24 of the Alberta Rules of Court , Alta Reg 124/2010 ( Rules ). [ 4 ] MOG consented to the declaration of parentage and made a proposal about ongoing and retroactive child support. He also provided some incomplete financial disclosure. His counsel’s written submissions addressed costs, including a proposal that each party bear their own costs.

There was no mention of the possibility that MOG had tendered a Formal Offer to Settle. [ 5 ] By Desk Endorsement, I granted the declaration of parentage and ongoing child support. Retroactive support was reserved for an oral hearing or a trial. Party and party costs were awarded to TAM for steps in the proceeding up to the date of the Desk Endorsement based on Column 2 of

Schedule C of the Rules . Column 2 rather than Column 1 was selected, in part, to recognize that MOG’s litigation conduct unnecessarily lengthened and complicated the proceeding: Rule 10.33(2)(a). In determining the costs award, I looked favourably on MOG’s concessions about parentage and the quantum of continuing child support, although those concessions were only made after most of the litigation steps in this proceeding had occurred. [ 6 ] In Hryniak v Mauldin , 2014 SCC 7 [ Hryniak ], the Supreme Court of Canada encouraged a culture shift towards timely and affordable access to the justice system.

Litigation steps are to be proportionate to the nature and complexity of the litigation. Proportionality is a “touchstone for access to civil justice” and judges should “actively manage the legal process in line with the principle of proportionality”: paras 30 and 32. The Court is to consider “the appropriateness of its procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation”: Hryniak at para 31 .

These principles apply generally to family litigation: Battaglini v Battaglini , 2021 ABQB 89 at paras 64-66 [ Battaglini ]. [ 7 ] Unnecessary complexity is especially concerning in family law proceedings where the interests of a child are involved. Too often, parental conflict and litigation tactics consume the parties’ resources until their money is gone. The child’s needs become compromised. The Court is always diligent about judicial economy and preventing the wasteful use of its procedures, but that vigilance also guards against parties inflicting excessive process on each other.

Enhanced costs awards, even modest amounts, help to deter unnecessary complexity and compensate the adversely affected party. [ 8 ] The two Formal Offers to Settle did not invite double costs. Compromise is a required element for a formal settlement offer having costs consequences: Allen (Next Friend of) v Mueller , 2006 ABCA 101 at paras 15-17 [ Allen ]; Dirk v Toews , 2020 ABQB 16 at paras 12-14 .

A formal offer must not be made for the sole purpose of invoking the double costs sanction; it must reflect the relative merits of the parties’ positions and be more than a no-risk litigation tactic: Allen at paras 15-16 . [ 9 ] The two Formal Offers were essentially demands for MOG to fully concede on the threshold issue of submitting to a DNA test or acknowledging parentage, without any meaningful compromise.

The first Formal Offer, tendered early in the proceeding, required MOG to submit to a DNA test, but reduced his reimbursement of expenses to 50% for a positive DNA test (i.e. approximately a $300 savings to him). I concluded that was not a material compromise. The second Formal Offer merely proposed that he acknowledge being a parent of the child, which was not an offer of compromise at all. [ 10 ] Binary choices in litigation, such as submitting or not submitting to DNA testing or acknowledging parentage, generally do not lend themselves to compromise and formal settlement offers under the Rules .

Here, the nature of these Formal Offers was such that they did not serve as genuine expressions of compromise. Accordingly, they did not comply with the Rules and I declined to award double costs. [ 11 ] After the Desk Endorsement issued, MOG’s counsel notified me about her client’s Formal Offer and asked that the costs award be varied. In response, TAM provided additional written submissions supporting the costs award and denying any waiver of settlement privilege, but did not object to the reconsideration. [ 12 ] The Order arising from my Desk Endorsement has not been signed or entered.

Analysis [ 13 ] At any time before a judgment or order is entered, the Court, on application, if satisfied that there is good reason to do so, may hear more evidence and change or modify its judgment or order or the reasons for it: Rule 9.13(b). [ 14 ] The discretion must be exercised “sparingly and with great care”: 671122 Ontario Ltd v Sagaz Industries Canada Inc , 2001 SCC 59 at para 61 [ Sagaz ].

The Courts should be “very sparing in their reopening of a pronounced decision, and should not do so simply for the asking”: Alberta (Child, Youth and Family Enhancement, Director) v BM , 2009 ABCA 258 at para 11 [ BM ]. [ 15 ] “A fundamental underpinning of this principle is the need to avoid abusive case splitting and to promote finality in litigation”:

Tiamat Resources Inc v Procyon Resources Corp, 2021 ABQB 646 at para 7. Parties are required to put their best foot forward on thefirst occasion. [16] In BM, at para 13, Justice Côté identified several factors that might be considered when deciding whether to reopen ajudgment or order: a. Would a miscarriage of justice arise without the re-opening? b. The pronounced decision is not to be taken away without very solid grounds. c. Is the applicant trying to raise a new issue that could have been raised earlier? d. A new argument alone is not enough; new important facts are necessary. e.

Has any other party relied on the order to its detriment? f. Does the applicant’s new factual stance contradict its earlier factual assertions or evidence? [17] A decision may also be re-opened if the test for the admission of new evidence is satisfied.

In MAK v TJK, 2020 ABCA 196at para 12, the Alberta Court of Appeal adopted the following statement of the test as articulated in Scott et al v Cook et al, [1970] 2 OR769, (Ont SC) and applied by the Supreme Court of Canada in Sagaz: ... the applicant must show that the evidence he seeks to adduce is such that, if it had been presented at trial, it would probably havechanged the result. On the other hand, a party seeking leave to introduce new or further evidence on appeal must show that the evidenceis such that, if adduced, it would be conclusive or practically conclusive and not merely corroborative.

In both instances, the party mustalso prove that such evidence could not have been obtained by reasonable diligence before the trial. [18] MOG applies to introduce his Formal Offer and a without prejudice settlement offer set out in a letter dated June 29, 2021(“Settlement Letter”). The written submissions in support of his application attempt to re-litigate the costs award more broadly. [19] The Formal Offer was apparently served on TAM’s lawyer on July 28, 2021. The settlement terms address both ongoing andretroactive child support, with each party to bear their own costs.

The offer does not separate the settlement into independent parts so thatone part may be accepted without the other. [20] The Formal Offer would not have changed the results of the costs award. [21] Rule 4.29(2) directs that: if a defendant makes a formal offer to settle that is not accepted and a judgment or order in the action is made that is equal to or morefavourable to the defendant than the offer, the defendant is entitled to costs for all steps taken in the action in relation to the action orclaim after service of the offer. [emphasis added]. [22] The party tendering an offer to settle cannot cherry pick the good parts and ignore the balance: Allen v University HospitalsBoard, 2000 ABQB 965 at para 28; LHZ v Schubert, 1999 SKQB 49 at para 45. [23] Moreover, the Court looks at the net effect of the offer: Gardner v Gardner, 2008 ABQB 750 at paras 32-33.

Retroactivechild support has not been determined. Consequently, the net effect of the Formal Offer cannot be assessed. [24] More fundamentally, the Formal Offer only applies to steps taken after service of the Offer. No steps have been taken sincethe Formal Offer was served. Even the parties’ written submissions for the Desk Application were already submitted.

All of the steps forwhich costs were awarded preceded service of the Formal Offer. [25] In short, the Formal Offer simply does not assist MOG’s position on the determination of costs up to the date of the DeskEndorsement. [26] As for the Settlement Letter, it is privileged.

The settlement terms in the letter combine ongoing and retroactive child support,access to information about the child, contact with the child and a mutual waiver of costs. [27] An offer marked “without prejudice” can be utilized in assessing costs because the settlement posture of the parties is anexception to settlement privilege for that purpose: Bellatrix Exploration Ltd v Penn West Petroleum Ltd, 2013 ABCA 10 at para 29.However, all of the issues, except those related to costs, must have been decided: Mahe v Boulianne, 2010 ABCA 74 at paras 8 and 9.Here, the issue of retroactive child support remains outstanding; the privilege therefore applies. [28] In addition, settlement privilege belongs to both parties and cannot be unilaterally waived by one of them: Leonardis vLeonardis, 2003 ABQB 577 at para 5.

An exception exists for a Calderbank offer, which requires that the offer expressly state that if notaccepted, the terms of the offer may be considered when addressing costs (or where the recipient was otherwise able to appreciate thatsettlement privilege would not attach when costs were determined). The Settlement Letter contains no such statement and nothing beforeme indicates that TAM appreciated the letter could be used for that purpose. Consequently, MOG cannot unilaterally waive privilegeand attach the Settlement Letter to filed court documents or otherwise mention the letter in court.

See: Battaglini at paras 53-54; Holizkiv Alberta (Public Trustee), 2009 ABQB 260 at paras 59-62. [29] For the above reasons, I decline to consider the contents of the Settlement Letter. [30] In any event, as with the Formal Offer, the co-mingling of ongoing child support with other issues precludes any comparisonof the net effect of the offer with the outcome of the proceedings to date.

[31] The Formal Offer and the settlement letter are not new evidence that would change the outcome of the costs award. Theycould have been raised in the first instance through reasonable diligence. [32] Applying the factors summarized in BM, no miscarriage of justice arises in refusing to re-open the costs award. In the originalcosts submissions, MOG could have addressed any admissible settlement offers or reserved the ability to speak to costs after theoutstanding issues were determined. The possibility of a potentially relevant Formal Offer or an informal Calderbank offer could havebeen mentioned.

Finality and certainty are served by declining the request to re-open the costs award. Enforcement of Costs through the Director of MaintenanceEnforcement [33] TAM asks that the costs award be enforceable through the Director of Maintenance Enforcement. Such a direction isfrequently granted by this Court: EAS v BJH, 2002 ABQB 603 at para 41; Darby v Darby, 2015 ABQB 582 at para 103; Annett vAnnett, 2017 ABQB 216 at paras 6 and 26; Anderson v Laboucan, 2017 ABQB 642 at para 63.

However, a contrary view holds that theDirector lacks the jurisdiction to make such an order: see for instance Redekopp v Lindsey, 2020 ABPC 199 at paras 45-47 [Redekopp]. [34] Section 2(1) of the Maintenance Enforcement Act, RSA 2000, c M-1 states: “Only that part of a maintenance order thatrelates to the payment or security of payment of maintenance may be enforced under this Act” [emphasis added]. [35] A “maintenance order” is defined in s 1(1)(

e) of the Maintenance Enforcement Act to include an order or interim order of acourt in Alberta that requires the payment of child support. “Maintenance” is defined in s 1(1)(

d) to include “interest or the payment oflegal fees or other expenses arising in relation to maintenance” [emphasis added]. [36] In Redekopp, a Provincial Court Judge concluded that “legal fees” refers to the expenses incurred by the Director, not a party.With respect, I do not agree. [37] No such restriction appears in the language of s 1(1)(d).

Maintenance includes the payment of any legal fees “arising inrelation to maintenance.” The legal fees of the parties to the maintenance order are not expressly excluded. [38] Moreover, s 43(1) of the Act refers to the Director’s authority to recover the “costs” incurred by the Director in theenforcement of a maintenance order.

The term “legal expenses” in the Act does not expressly or impliedly differentiate between the costsawarded to a party and those incurred by the Director. [39] Even more telling, s 43(2) actually distinguishes between the costs incurred by the Director and “maintenance”: Any amount that a debtor is required to pay to the Director under subsection (1) may be collected in the same manner as maintenancemay be enforced under this Act. [40] If the Director’s legal fees are subsumed within the definition of “maintenance”, s 43(2) is rendered redundant. [41] In Ontario, identical language in the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c 31 hasbeen repeatedly interpreted to include costs awarded to a party: Wildman v Wildman (2006), 82 OR (3d) 401, (OntCA); Drygala v Pauli (2003), 35 RFL (5th) 323, (Ont CA); Shelley v Shelley, 2019 ONSC 2830. [42] Even if “legal expenses” referred only to the Director’s legal costs, that would not exclude enforcement of a party’s costsaward from the scope of s 2(1).

A party’s costs award is enforceable so long as it “relates to” the payment of maintenance. The words“relates to” have an expansive meaning and are generally interpreted to mean touches on or in any way being concerned or connectedwith a matter: Han v Cho, 2008 BCSC 1192 at para 18. [43] The act of obtaining an order for child support is “related to” the payment of maintenance.

The costs awarded for seekingmaintenance recognize reasonable expenses incurred to achieve the result. [44] Finally, the enforcement of costs awards for obtaining child support is consistent with the statutory objects of the legislation,which include a simplified and cost-effective process for ensuring that people honour their obligations to pay child, spousal and partnersupport under the terms of court orders and certain maintenance agreements. Excluding related costs awards needlessly complicates andcreates financial barriers to enforcement.

Such an exclusion frustrates access to justice. [45] A determination of parentage is also related to the payment of maintenance since the parental relationship grounds the legalobligation to pay. The Act recognizes the connection in s 1(2)(b), which states that an agreement under the Parentage and MaintenanceAct, RSA 2000 c P-1 is deemed to be a maintenance order. [46] I conclude that the Director has the authority to enforce TAM’s costs award, which compensates for the legal expenses arisingin relation to parentage and the payment of child support. I order the Director to enforce the award.

Costs [47] MOG shall pay costs to TAM for this re-opening application in the lump sum of $1000 (calculated under Column 2 for acontested application).

Identification Ban [ 48 ] For the purpose of protecting the well-being of the Child, I exercise my discretion under s 100 of the FLA and prohibit the publication or broadcast of any information that could identify the Child. Dated at the City of Edmonton, Alberta this 1st day of September, 2021. K.S. Feth J.C.Q.B.A. Appearances: Jennifer Leung for TAM Maureen E. Murdoch for MOG No appearance for AV