VC v BH, 2021 ABQB 736

Court of Queen’s Bench of Alberta Citation: VC v BH, 2021 ABQB 736 Date: 20210915 Docket: 4801 168470 Registry: Calgary Between: VC Plaintiff - and - BH Defendant _______________________________________________________ Costs Decision of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] This matter came before me for a two-day trial. My trial decision is reported at VC v BH, 2021 ABQB 575 . [ 2 ] BH and VC have two children (Children). At the time of the trial, the Children resided with BH’s mother and father in Cardston, Alberta.

BH and his father, BRH (Grandfather), were, by Order of this Court, the Children’s guardians. [ 3 ] The Children had been taken away from their mother, VC, as a consequence of recurring mental health issues that this Court believed placed the Children in danger. [ 4 ] BH travels a great deal in connection with his work. He sought permission to relocate with the Children to San Diego,

California. At the same time he sought to have his sister, KM, who lives in San Diego, become a joint guardian of the Children. The plan was for BH to spend time with the Children in San Diego when he returned home from overseas assignments. [ 5 ] I am completely satisfied that BH undertook to relocate the Children out of legitimate concern for their wellbeing, should VC retain primary care and continue to experience mental health episodes. [ 6 ] To that end, in addition to BH’s relocation application, KM made application to this Court for parenting and decision-making responsibilities for the Children.

She sought an Order that she be added as joint guardian for the Children, together with BH and the Grandfather. [ 7 ] VC opposed BH’s application to relocate the Children and KM’s application to be appointed a guardian. She also sought termination of guardianship and decision making for the children which this Court had granted to the Grandfather. [ 8 ] She wished to have primary care of the Children returned to her. She sought to have primary decision-making responsibility for the Children vested in her. She sought to have the restraining order against her vacated. II.

The Decision [ 9 ] I discharged the Grandfather as a guardian and I returned the Children to the primary care of VC. I denied BH’s request to move the Children to San Diego. I denied KM’s guardianship application. I removed the restraining order against VC. [ 10 ] I directed that BH and VC equally share all decision-making rights and responsibilities with respect to the Children. I directed that when BH was present in Calgary he would share parenting time with VC equally.

When he was away from Calgary he was to have regular Facetime parenting time with the Children. [ 11 ] I also provided that the Grandfather and KM would have weekly video contact with the Children. [ 12 ] Given VC’s history of mental challenges and her unwillingness to take prescribed medication, I imposed a strict protocol designed to ensure that VC undergoes daily monitoring to ensure that she takes her medication (Safety Protocol).

I directed that she regularly attend before a Psychiatrist. [ 13 ] In the event that VC fails to follow the Safety Protocol or if BH or any medical professionals are concerned that VC is experiencing a mental health episode, I directed that BH could bring the matter back before this Court on an emergency basis to seek suspension of VC’s decision-making and parenting rights, pending a mental health assessment. III. The Parties’ Costs Submissions [ 14 ] VC seeks costs in the amount of $8,500, pursuant to

Schedule C, Column 1 of the Alberta Rules of Court (Rules) . She provided a draft Bill of Costs. She claims she was completely successful in resisting the applications brought by BH and KM and in securing the relief she sought in her cross-application. [ 15 ] Given that she thinks she was successful, it is not surprising that she refers to Rule 10.29 and Rule 10.33(1)(a). Those provisions focus on relative success. [ 16 ] In his submissions BH alludes to the evolution of this matter, ultimately resulting in a trial before me.

He notes that he was required in the summer of 2020 to take steps to restore parenting time which VC had begun to unilaterally withhold. He succeeded in September of 2020 in having parenting time restored. [ 17 ] BH was required to take further steps to protect the Children’s interests when, in November and December of 2020, VC once again started to experience an alarming mental health episode. Child and Family Services had to become involved. [ 18 ] BH ultimately succeeded in having VC removed as the primary care parent and in having a restraining order lodged against her.

Despite incurring legal expenses, he sought no costs notwithstanding his success. [ 19 ] BH was required on more than one occasion to adjust to VC’s inability to proceed with the mobility trial before me, requesting, as she did, late adjournments to reflect her institutionalization and a subsequent decision to retain counsel. [ 20 ] BH points out that it was only in closing argument at trial that VC proposed the Safety Protocol that, with some modification, I implemented in order to allow VC to resume parenting.

I was left to wonder why VC was unwilling to voluntarily implement such a protocol earlier in order to protect the Children’s interests. IV. Discussion [ 21 ] I have discretion to award costs ( Rule 10.31) considering the factors outlined in Rule 10.33. One of those factors is the result of the action ( Rule 10.33(1)(a)). Another is apportionment of liability ( Rule 10.33(e)). Rule 10.33(1)(

g) allows me to consider any other matter related to reasonable and proper costs that I consider appropriate. [ 22 ] Here, the trial, and much of the pre-trial effort that BH had to make in order to ensure the safety of the Children, would not have been necessary if VC had been willing to address her mental health issues responsibly. She refused to take her prescribed medication.

[ 23 ] BH’s and KM’s applications were necessary in order to address the Children’s best interests. They went to great effort and expense to advance their applications and they acted responsibly in conduct of those applications. [ 24 ] VC can argue that she was successful in regaining primary care of the Children. But she will be under close scrutiny. When BH is in Calgary a shared parenting arrangement applies. [ 25 ] Indeed, BH is the party enjoying success here. Through his initiative he succeeded in drawing the Children’s predicament to the Court’s attention.

He succeeded in prompting the implementation of the Safety Protocol. His demonstrated concern for the Children’s welfare is precisely why my Order provides BH with the right to bring the matter back before the Court on an emergency basis if he has concerns regarding VC’s mental health. [ 26 ] VC cannot credibly assert that restoration of primary care of the Children to her under these circumstances constitutes a measure of success. Whether she will adhere to the Safety Protocol or not remains to be seen.

That is why I have directed periodic reviews of her compliance with the Safety Protocol. [ 27 ] VC’s willingness to abide by the Safety Protocol will need to be tested each day. She has relapsed many times in the past. The Children’s best interests leave no room for uncertainty in that regard. It would be incorrect to view the best interests of the Children as having been resolved for any predictable period of time. [ 28 ] An award of full indemnity costs against VC would strike me as a reasonable request.

Had she behaved responsibly, it would not have been necessary for BH and KM to act to protect the Children’s interests. [ 29 ] Yet, despite BH’s success, which I believe is evidenced by his successful intervention on behalf of the Children resulting in the implementation of the Safety Protocol, and despite the significant sums of money he has expended in that effort, he seeks only $2,000.00 in costs. [ 30 ] I award BH $2,000.00 in costs, payable by VC forthwith. Dated at the City of Calgary, Alberta this 15 th day of September, 2021. C.M. Jones J.C.Q.B.A. Appearances: VC Self Represented Litigant Katelyn M.

Clarke for the Defendant