Foley v Leavitt, 2021 ABQB 875

Court of Queen’s Bench of Alberta Citation: Foley v Leavitt, 2021 ABQB 875 Date: 20211103 Docket: 4801 147612 Registry: Calgary Between: Craig James Foley Plaintiff - and - Shanna Irene Leavitt also know as Shanna Irene Foley Defendant _______________________________________________________ Ruling on Costs of the Honourable Madam Justice R.E. Nation _______________________________________________________ [ 1 ] The parties were involved in a contested application that was heard in afternoon chambers on June 17, 2021. Ms. Leavitt applied to set arrears resulting from a 2013 support order, alleging spousal support arrears of $220,500 and child support arrears for

section 3 and

section 7 expenses of $102,596. There were disclosure issues before the special was heard, and unsatisfactory historical information provided by Mr. Foley. Ultimately, the retroactive child support arrears were set at $12,952.70 and the spousal support arrears at $58,500. Spousal support was terminated and ongoing child support was set. [ 2 ] The parties were unable to agree on costs and written submissions were provided dated October 5, 2021 by Ms. Leavitt and October 14, 2021 by Mr. Foley, and a reply by Ms. Leavitt on October 25, 2021. [ 3 ] Ms. Leavitt asks for solicitor client costs, of $31,191 largely as a result of non-disclosure, and her ultimate success in having

arrears set. Mr. Foley opposes this. He argues solicitor client costs are rarely granted and there was not egregious conduct. He points out that there was noncompliance with the disclosure on both sides historically. He points out that the numbers awarded were much less than demanded by Ms. Leavitt and he was successful in obtaining a termination of spousal support. Mr.

Foley asks for taxable costs and disbursements, but if solicitor-client costs are found to be appropriate, the amount of $12,434. [ 4 ] It does not appear that there were any formal offers to settle, or settlement discussions that would be relevant in a costs award here. [ 5 ] Here, both parties did not comply with the court ordered annual disclosure of their tax information, which I commented was the basis and first step in reaching agreement on support. Clearly Ms. Foley provided her tax returns in advance of the litigation. Mr. Foley did not, and court direction was required for him to disclose. Ms.

Leavitt is entitled to solicitor client costs for all steps taken, either in correspondence by her solicitor, or in court (for example the family docket order) to force disclosure by Mr.

Foley after October 8, 2020, when she had provided her income information until April 21, 2021 when the financial statements of CF Custom Welding Ltd and notice of reassessment were finally provided to complete the Notice to Disclose requirements. [ 6 ] The usual outcome is that the successful party will receive costs as per Rule 10.29 (1), after considering the factors set out in Rule 10.33. [ 7 ] In terms of the positions at the family special, and the issues, I do not find that solicitor-client costs are deserved beyond the period of non-disclosure by Mr.

Leavitt, which is egregious conduct by him and made this application much more expensive. In terms of the issues argued, each party had some success, Ms. Leavitt obtained an order for retroactive support, but it was much, much less than she requested. Mr. Foley was successful in obtaining a termination of spousal support and a reduction of his income post COVID 19, to reflect the realities of his situation. There was thus divided success. I have to consider that, as well as the fact that there was confusion arising from some of Mr.

Foley’s financial disclosure which hampered both and the court resolution. [ 8 ] As a result, I find it fair that Ms. Leavitt is entitled to taxable costs and disbursements under Column 1 (for domestic matters) of

Schedule C of the Alberta Rules of Court , for all matters from April 21, 2021, through this costs application. Submissions were made in writing October 5 th , 14 th and 25 th day of October, 2021. Dated at the City of Calgary, Alberta this 3 rd day of November, 2021. R.E. Nation J.C.Q.B.A. Appearances: Ms. Sara S. Olesiak for the Plaintiff Mr. Shams Amiry for the Defendant