MYW v DTW, 2021 ABQB 713

Court of Queen’s Bench of Alberta Citation: MYW v DTW, 2021 ABQB 713 Date: 20210907 Docket: 4801 179032 Registry: Calgary Between: MYW Applicant - and - DTW Respondent _______________________________________________________ Endorsement on Costs of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] The Applicant Mother seeks an award of solicitor-client costs in respect of a series of applications and orders dealing with the Respondent Father’s financial disclosure, or lack thereof. The Mother’s solicitor-client Bill of Costs totals $8,867.90.

I consider that to be a reasonable and proper award of costs in the circumstances of this matter and for the reasons that follow, I grant solicitor-client costs in that amount. Failure to Disclose [ 2 ] The parties separated in 2018 after approximately 11 years of marriage. They have two children who are now 9 and 11 years of age. The parties have not finally resolved their matrimonial property and child support issues. The Mother says this is because of the Father’s failure or refusal to provide complete and timely financial disclosure, even in the face of multiple Court Orders requiring him to do so.

[3] The first such Order was granted by me on October 30, 2018. Mother’s counsel had filed and served a Notice to Disclose onSeptember 27, 2018. When the Father failed to provide all the required information, the Mother applied for and I granted a DisclosureOrder that directed him to retain an accountant or bookkeeper to prepare the tax returns for five identified companies plus any others inwhich he had any interest and provide that information forthwith upon completion.

The matter was returnable on November 30, 2018. [4] A year later, the Father had still not produced the corporate information ordered and had only gone so far as retainingKPMG. He produced the engagement letter and seemed to take the position this should suffice, notwithstanding the length of time myOrder had gone ignored. On November 28, 2019, the parties returned to chambers before Ho, J (as she then was).

She granted a ConsentOrder extending the Father’s deadline to January 9, 2020 and reserving costs of that application. [5] Partial financial disclosure for most of the identified companies was provided in December of 2019. In March of 2020,counsel for the Mother requested the financial statements and breakdown of claimed expenses for the subject corporations named in theOctober 30, 2018 Order.

After waiting another year and not receiving that information, the Mother applied for an Order declaring theFather in contempt of both the aforementioned Orders and seeking various forms of relief in the event that he failed to purge hiscontempt, including an Order for solicitor-client costs. [6] At that contempt motion before me on April 28, 2021, the Father argued that he needed only to produce corporate tax returnsand not additional financial statements or expense claim information.

His counsel argued that there was so little income available to himin the construction industry that it made no financial sense to pay an accountant to complete the work directed. I directed that the Fatherhad to provide all information relating to any expenses claimed for the two companies he identified as operating from 2017-2020, as wellas identifying any personal benefit he derived from these companies or which he or his accountant attributed to the Mother.

I gave himuntil June 22, 2021 to do so and set the show cause date for June 23, 2021. [7] On June 23, 2021, the parties appeared again and the Mother made her pitch for solicitor-client costs. The Father continuedto say that he had complied to the best of his ability. While the Father was not found in contempt on that date, the Mother still soughtsolicitor-client costs based on the many court applications she was forced to bring and the failure or refusal of the Father to comply withhis legal obligations throughout 2½ years of litigation on this issue.

Solicitor-Client Costs in Family Matters [8] A successful party in litigation is entitled to his or her costs, although the court retains discretion in matters of costs; AlbertaRules of Court, Rule 10.29(1)(a). [9] Before looking at family law matters in particular, reference should be made to Jackson v Trimac Industries, 1994 ABCA199 [Jackson] which affirmed the award of solicitor-client costs made by Hutchinson, J at trial.

In his judgment, Hutchinson, J reviewedthe case law on solicitor-client costs and laid out the following examples of where these elevated costs awards are justified: In order for costs to be awarded on an indemnity basis or even on a solicitor-client basis, as opposed to a party-party basis, the court mustconclude that the case fits within the parameters of a rare and exceptional or unusual case.

Examples from the above cited cases resultingin the identification of a rare and exceptional case include: 1. circumstances constituting blameworthiness in the conduct of the litigation by that party (Reese); 2. cases in which justice can only be done by a complete indemnification for costs (Foulis v.

Robinson); 3. where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issue offact 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 (Sonnenberg); 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 (Olson); 5. where the defendants were guilty of positive misconduct, where others should be deterred from like conduct and the defendants shouldbe penalized beyond the ordinary order of costs (Dusik v.

Newton); 6. defendants found to be acting fraudulently and in breach of trust (Davis v. Davis); 7. the defendants' fraudulent conduct in inducing a breach of contract and in presenting a deceptive statement of accounts to the court attrial (Kepic v.

Tecumseh Road Builder et al.), 8. fraudulent conduct (Sturrock); 9. an attempt to delay or hinder proceedings, an attempt to deceive or defeat justice, fraud or untrue or scandalous charges (Pharand);(1993 (AB KB), CarswellAlta 310 at paras.28-37). [10] In Jivraj v Jivraj, 2014 ABQB 307 at paras 16-17, Justice Veit addressed the issue of solicitor-client costs awards in familylaw matters, making the point that family law litigants may be those most in need of timely and efficient processes: In their recent decision in Combined Air Mechanical Services Inc., albeit in the totally different context of alternative adjudication ofdisputes, the Supreme Court of Canada reminded us that a shift in culture is required to ensure that the justice system be able to provide afair and just process which is "proportionate, timely and affordable".

As important as is this principle in the commercial context in whichit was articulated, this principle is all the more pertinent in family disputes, where the cost of legal proceedings cannot be written off or

passed along as a cost of doing business; in family law matters, legal costs come out of the budget of the parents and out of the availability of funding for the wellbeing of children. The courts and the bar must therefore discourage time and money consuming process which does not aid in achieving fair and just process and which may, in fact, be counter-productive to those ideals. [ 11 ] I wholeheartedly echo Justice Veit’s sentiment.

However, earnest and diligent one party to a family law dispute may be, it is virtually impossible to move a matter forward in a fair way without timely and complete financial disclosure. It is, as our Supreme Court has recently said, “the linchpin of a just and effective family law system”; Colucci v Colucci , 2021 SCC 4 at para 4 . [ 12 ] The Father had no adequate excuse for the delay of 2½ years.

Even at the final hearing, counsel for the Mother indicated that they had just recently, with the Father’s eventual disclosure, discovered there was another company he was operating with no prior indication of this at all. When asked why this had not been disclosed earlier, the response was that it had not been included in the previous Orders.

This suggests an intention to comply with disclosure obligations, where at all, only technically. [ 13 ] Similarly, the idea that the Father could comply with the first Disclosure Order by retaining an accountant, but then failing to actually secure and provide the information set out in the Court Order or the idea that the Father could claim significant business expenses without any explanation or back up documentation, all speaks to a litigant who was simply trying to avoid his disclosure obligations as long as possible. [ 14 ] Infrequently, parties have substantive issues regarding what need or need not be disclosed.

No such situation existed here. The material required to be produced required no court or judge to enumerate or define it and yet no less than 3 court orders and 4 court appearances were required. This is precisely the kind of obfuscation our courts should be more strongly discouraging. In my view, it squarely falls within at least the first 3 of the examples laid out by Hutchinson, J in Jackson of conduct attracting an award of solicitor- client costs.

Further, the amount is not at all overly punitive given it covers years’ worth of work and multiple court appearances. [ 15 ] The Mother is entitled to an award of solicitor-client costs of $8,867.90 covering the Bill of Costs items relating to the disclosure motions of 2019 and 2021. Heard on the 23 rd day of June, 2021. Dated at the City of Calgary, Alberta this 7 th day of September, 2021. M.H. Hollins J.C.Q.B.A. Appearances: Mr. Daniel Wilson for the Mother Applicant Ms. Traci Bannister for the Father Respondent