Battaglini v Battaglini, 2021 ABQB 89

Court of Queen’s Bench of Alberta Citation: Battaglini v Battaglini, 2021 ABQB 89 Date: 20210204 Docket: 4803 173605 Registry: Edmonton Between: Kevin James Patrick Battaglini Plaintiff - and - Barbara Jean Battaglini Defendant _______________________________________________________ Decision on Costs of the Honourable Mr. Justice K.S. Feth _______________________________________________________ [ 1 ] Kevin Patrick James Battaglini was granted interim spousal support following a hearing in Special Chambers. His request for retroactive spousal support was reserved for trial.

The factual background is detailed in Reasons for Decision reported at 2020 ABQB 665 . [ 2 ] The parties have been unable to settle the costs of the application. [ 3 ] Mr. Battaglini seeks enhanced costs totalling $14,705 for the half-day Special Chambers application. Extensive submissions are tendered to advance his position. Mrs. Battaglini submits that the results of the application were mixed and the parties should bear

their own costs. Relevant principles [ 4 ] Rule 10.29 of the Alberta Rules of Court, Alta Reg 124/2010 (“ Rules ”) establishes the general rule for costs awards: a successful party is entitled to costs against the unsuccessful party, subject to the Court’s general discretion. A trial judge’s discretion must be exercised judicially and in accordance with established principles: Lameman v Alberta , 2011 ABQB 532 at para 6 , leave to appeal refused, 2011 ABCA 724 . [ 5 ] Rule 10.33(1) states that in making a costs award, the Court may consider all or any of the following factors: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; and (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [ 6 ] In deciding whether to impose, deny or vary an amount in a costs award, Rule 10.33(2) expands the analysis to include other considerations including “whether a party has engaged in misconduct.” [ 7 ] Generally, costs in family law matters should follow the same principles applicable to other litigation: Shaw v Shaw, 2014 ABQB 165 at para 14 ; Cador [Chichak] v Chichak , 1998 ABQB 881 at para 9 , aff’d 2000 ABCA 10 . [ 8 ] The Court of Appeal in DBF v BF , 2018 ABCA 108 , at para 13 , succinctly summarized the costs principles in family litigation:

a) the successful party is presumptively entitled to costs;

b) success in family matters means substantial success, not absolute success; and

c) costs are not normally awarded on an issue-by-issue basis. [ 9 ] Substantial success does not require success on every issue or argument: Mahe v Boulianne , 2010 ABCA 74 at para 6 [ Mahe ]; Johannson v Haaranen , 2019 ABCA 197 at para 4 . [ 10 ] Costs awards provide a measure of indemnification to litigants, but also enable the Court to oversee its own process and to ensure the efficient and just conduct of litigation. The discipline imposed by costs promotes reasonable concessions and settlement by the parties. Analysis [ 11 ] Mr.

Battaglini contends that he was substantially successful on the most important issue before the Court – interim continuing spousal support – and that his application indirectly caused Mrs. Battaglini to comply with a previous court order requiring a company controlled by her, RBL Ltd., to pay a monthly salary to Mr. Battaglini. He adds that she made the application more complicated than necessary by trying to adduce inadmissible evidence and by failing to fully disclose relevant financial information. Finally, he submits that Mrs.

Battaglini failed to accept a reasonable settlement proposal tendered as a Calderbank offer five days before the Special Chambers hearing. [ 12 ] Mrs. Battaglini contested entitlement to spousal support and the quantum sought. On the eve of the application, she restored the payment of the monthly salary from RBL Ltd., and within a day of the hearing, directed that four months of outstanding backpay be deposited into Mr. Battaglini’s account. She asserts the terms of the Calderbank offer were unclear and suggests the offer provided insufficient notice to influence the Court’s costs award.

a) Success on the merits [ 13 ] Mr. Battaglini successfully established prima facie entitlement on both compensatory and non-compensatory grounds. [ 14 ] Most of the evidence and argument was directed at the quantum of support. Mr. Battaglini asked that his wife’s annual income be imputed at $350,000, based on a fixed salary plus the attribution of approximately $275,000 in pre-tax corporate earnings, and that his income be set at $26,000. Mrs. Battaglini proposed her income be set at $72,769, with no attribution of corporate earnings, and that substantial income be imputed to Mr.

Battaglini on the basis that he was deliberately underemployed and withholding the full extent of his income. On that basis, even if entitlement was established, Mrs. Battaglini contended no spousal support should be ordered. [ 15 ] I determined that Mrs. Battaglini’s income was $74,300 and Mr. Battaglini’s income was $42,000. I did not attribute corporate earnings to Mrs. Battaglini. Accordingly, Mrs. Battaglini was substantially successful on the most complicated issue. [ 16 ] Mr. Battaglini complained that his wife improperly suspended the payment of his monthly salary from RBL Ltd.

By operation of a 2019 Consent Order in this action, Mrs. Battaglini was required to direct her company to pay $3,500 per month to Mr. Battaglini

until further order of the Court. In April 2020, Mrs. Battaglini unilaterally stopped the payments, ostensibly because the COVID-19 pandemic had caused her to lay off staff. [ 17 ] In response to the application, Mrs. Battaglini acknowledged the obligation to restore the salary payments, but argued that the payments should be treated as an advance on matrimonial property. [ 18 ] Mrs. Battaglini proposed that retroactive support be referred to a trial. I agreed. Significant factual controversies necessitated a trial. Financial disclosure by both parties was incomplete. The discovery process was ongoing.

The request for retroactive support was ill-suited for a determination in Special Chambers. [ 19 ] Mr. Battaglini submits that the retroactive support claim had to be reserved for trial because Mrs. Battaglini alone failed to make adequate disclosure. However, as explained in my original Reasons, the retroactive support claim also suffered from insufficient evidence about Mr. Battaglini’s annual income since 2015. He had pursued a self-employment strategy for five years without achieving much income or self-sufficiency. Business losses for 2017 and 2018 were not explained in any meaningful way.

A trial was necessary. [ 20 ] In short, the parties enjoyed mixed success on the application.

b) The amount sought and the amount recovered [ 21 ] Mr. Battaglini was seeking at least $6,365 per month in spousal support. He was awarded $900. [ 22 ] Mr. Battaglini contends, however, that his application also had the effect of restoring the gross monthly salary of $3,500, resulting in a combined benefit of $4,400 per month. [ 23 ] The application before me did not expressly seek the enforcement of the Consent Order, nor did it request formal relief through a finding of civil contempt or another order. At the hearing, I explored with Mrs.

Battaglini’s lawyer whether the Consent Order would be respected and was informed that the payments were resuming. I then inquired about the four months of arrears and was told that Mrs. Battaglini had not yet provided instructions on that point. Within two days of the hearing, Mrs. Battaglini confirmed payment of the arrears. [ 24 ] Even with the monthly salary, the total gross amount now received by Mr. Battaglini is well below the amount of spousal support he requested. [ 25 ] Mr. Battaglini argues, however, that the Court should focus instead on the after-tax outlay by Mrs.

Battaglini for the salary and spousal support. That amount is purportedly very similar to the net cost of $6,365 in spousal support because Mrs. Battaglini’s support payment is tax-deductible. [ 26 ] Mr. Battaglini asserts, without detailed calculations, that the net cost to Mrs. Battaglini of $6,365 in monthly support is $3,428. In comparison, he submits that the monthly salary only costs Mrs. Battaglini $2,800 and the net cost of $900 in spousal support is $626, for a total of $3,426 per month. Again, the detailed calculations are not provided. [ 27 ] Even if I accept the figures advanced on behalf of Mr.

Battaglini, his position is flawed. Mr. Battaglini asserts a beneficial interest in RBL Ltd. as part of the unresolved division of matrimonial property. He appears to be seeking at least a 50% interest in that company. Payments of salary reduce the retained earnings in the company. Mr. Battaglini is not actively providing any services to the company for his salary, so the company receives no benefit from the payments. If Mr. Battaglini is entitled to one-half of the company, then Mrs. Battaglini’s contribution towards the net salary expense is only one-half of $2,800. Under that structure, the net cost to Mrs.

Battaglini of my award is $1,400 plus $626 for a total of $2,026, not $3,426. [ 28 ] At this stage in the litigation, I cannot conclude that Mr. Battaglini’s proposal and the outcome of the application involve similar net outlays for Mrs. Battaglini. The amount of spousal support awarded by this Court is substantially less than the amount sought.

c) Inadmissible evidence [ 29 ] Mr. Battaglini complains that Mrs. Battaglini attempted to introduce evidence that needlessly complicated the application. [ 30 ] At the Special Chambers hearing, Mrs. Battaglini sought leave to rely on an Affidavit tendered by a private investigator, who opined about the possibility that Mr. Battaglini was earning undisclosed income from surreptitious business activities. Mr. Battaglini opposed the introduction of that evidence. [ 31 ] Mrs.

Battaglini also tried to rely on two short letters from her accountant containing his opinions about the value of personal benefits she receives from RBL Ltd. and the accuracy of her reported income. The letters were not supported by an affidavit from the accountant. Mr. Battaglini objected to their admission. [ 32 ] I ruled that the private investigator’s Affidavit and the accountant’s letters were inadmissible. [ 33 ] Mr.

Battaglini submits that the Affidavit and the accountant’s letters offended the restrictions on evidence for Family Chambers applications imposed by Family Law Practice Note 2 and that costs should be awarded for non-compliance, as permitted by para 64 of the Practice Note. [ 34 ] I conclude that the attempt to introduce the additional evidence does not favour a costs award. First, Mrs. Battaglini sought leave from me at the hearing to rely on the private investigator’s Affidavit, as permitted by the Practice Note at para 35. The submissions

addressing the leave application were not complex and did not consume much time. Nothing suggests that Mr. Battaglini was put to any significant inconvenience or expense in considering and responding to the Affidavit. For example, no Questioning on Affidavit was conducted and no response affidavit was tendered by Mr. Battaglini. [ 35 ] Second, the letters from the accountant were proffered on the basis that the Court maintained control over whether to receive them into evidence.

The submissions objecting to their admission were also not complicated or time consuming. [ 36 ] The restrictions on evidence imposed by the Practice Note aim to streamline family litigation in an effort to reduce complexity, delay, conflict and expense. They exemplify a larger theme that the intricacies of the evidence, procedural steps and submissions should be proportional to the interests being litigated. However, they do not foreclose appropriate exceptions when warranted by the nature and complexity of the issue before the Court. [ 37 ] The evidence Mrs. Battaglini sought to introduce was uncomplicated.

While the opinions offered by the private investigator and the accountant were contested, nothing before me suggests Mr. Battaglini was subjected to significant expense, inconvenience or delay in assessing and responding to them. [ 38 ] Sometimes in family litigation, counsel will attempt to introduce evidence informally so as to reduce expense. The Court decides whether that informality compromises procedural and substantive fairness such that the evidence should be excluded.

Asking for permission late in the process, such as the hearing itself, invites the risk that the adverse party will undertake real expense in preparing for the possibility the evidence will be received. In those circumstances, costs might be appropriate. That was not the situation here.

d) Positive misconduct [ 39 ] Mr. Battaglini argues that Mrs. Battaglini’s failure to comply with the Consent Order directing monthly salary payments to him is “positive misconduct” that should invite the Court’s censure and an award of costs, even if the success of the application was otherwise mixed. [ 40 ] The Consent Order was granted in September 2019 after Mr. Battaglini’s employment with RBL Ltd. was terminated. The Consent Order restored his salary, but did not return him to active duties. In April 2020, when Mrs.

Battaglini unilaterally stopped the payments, no variation to or stay of the Consent Order was obtained. No inability to pay was demonstrated. The non-payment continued until the hearing of this application. Mrs. Battaglini did not commit to pay the four months of outstanding salary until the day after the hearing, although she then honoured the obligation without another court appearance or order. [ 41 ] I find that the suspension of Mr. Battaglini’s salary substantially contributed to his need for spousal support and motivated his decision to bring this application. Mrs.

Battaglini’s only justification for the suspension was that she had laid off most, but not all, of her company’s staff due to the economic impact of the pandemic. However, by early September, she was rehiring. Mr. Battaglini’s salary was still not reinstated until a few days before this application was heard, well after written submissions and affidavits were filed. [ 42 ] A common grievance in family proceedings is that court orders are not respected and parties are too often required to return to the Court to enforce rights or entitlements that were previously determined.

The effect is to exacerbate conflict and expense, and to waste the Court’s resources. [ 43 ] The efficient and effective administration of the Court demands compliance with its orders. In family litigation, disregarding court orders can needlessly deplete the parties’ limited resources and expose a financially vulnerable party to coercive tactics. [ 44 ] Mrs. Battaglini’s explanation for disregarding the Consent Order was unconvincing and not a justification for her actions. Some other employees continued to be paid.

No financial hardship to RBL Ltd. was shown and no evidence was provided that RBL Ltd. was unable to pay. [ 45 ] I conclude that misconduct occurred here. However, the non-payment of salary could have been addressed through a civil contempt application in regular chambers. Further, Mrs.

Battaglini capitulated shortly before the Special Chambers hearing and agreed to pay the arrears shortly afterwards, mitigating the misconduct. [ 46 ] Some costs should be awarded to redress the expense of returning to the Court to relieve the consequences of not obeying the Consent Order and to discourage non-compliance with the Court’s directions. While Mr. Battaglini’s application did not directly seek enforcement of the Consent Order, it had that effect.

e) Calderbank offer [ 47 ] Mr. Battaglini seeks enhanced costs, relying in part on a Calderbank letter delivered five days before the Special Chambers application. The proposal was for Mrs. Battaglini to pay ongoing spousal support of $6,365 per month. Childview calculations were included with the proposal, which identified Mrs. Battaglini’s income as $273,686 per year and Mr. Battaglini’s annual income as $31,200. Retroactive spousal support was to be reserved for trial. No costs were to be payable by either party. [ 48 ] The offer did not expressly address the outstanding obligation to pay Mr.

Battaglini’s salary through RBL Ltd. [ 49 ] Mr. Battaglini argues that the failure to accept the Calderbank offer is a significant factor supporting an award of double costs for all steps in the application including many that preceded the offer. [ 50 ] The Rules contain provisions for Formal Offers to Settle, which must satisfy specific formalities and trigger prescribed costs consequences, including double costs: Rules 4.24 to 4.29. The costs award is obligatory, except in “special circumstances” or as otherwise contemplated by Rule 4.29(4): Abt Estate v Ryan , 2020 ABCA 133 at para 67 .

[ 51 ] Informal settlement offers operating outside of the formal offer rules can also have costs implications, although the impact depends on the exercise of the Court’s discretion: Mahe at para 10 ; Fullowka v Royal Oak Ventures Inc , 2008 NWTCA 9 at paras 23- 25 [ Fullowka ] .

Even an offer marked “without prejudice” can be utilized in assessing costs because the settlement posture of the parties is an exception to settlement privilege for that purpose: Bellatrix Exploration Ltd v Penn West Petroleum Ltd , 2013 ABCA 10 at para 29 . [ 52 ] Parties are generally presumed to know the law, including the expiration of settlement privilege once the merits of the dispute are decided: Mahe at paras 9-10 .

However, that presumption can be problematic during the exercise of the Court’s discretion on costs if the recipient did not actually understand the implications of the offer – for example, if self-representing. [ 53 ] A Calderbank offer is a kind of informal settlement proposal by which a party expressly states that if the offer is not accepted, the terms of the offer may be referenced when addressing costs.

In Calderbank v Calderbank , [1975] 3 ALL ER 333 (CA) , the English Court of Appeal approved the practice of tendering an offer of compromise expressed to be “without prejudice” while reserving the right to utilize the offer when costs are assessed. Such an offer provides greater clarity about the consequences of non-acceptance. [ 54 ] No prescribed form is required for a Calderbank offer, but the recipient must be able to appreciate that settlement privilege will not attach when costs are determined: EAD Property Holdings

(103) Corp v Greyhound Canada Transportation ULC , 2015 ABQB 425 at para 36 [ EAD ] ; Holizki v Alberta (Public Trustee) , 2009 ABQB 260 at para 46 [ Holizki ] . [ 55 ] The terms of a Calderbank offer, like any settlement proposal, must be clear, precise and certain to make a binding contract if accepted: Holizki at paras 46 and 55 ; EAD at para 36 .

Any conditions attached to the proposal must therefore be sufficiently described so that satisfaction or waiver of the conditions, including the timing for satisfaction or waiver, is understood by the parties. [ 56 ] In Bruen v University of Calgary , 2019 ABCA 275 at paras 7-8 [ Bruen ], the Alberta Court of Appeal explained the impact of a Calderbank offer: …Informal offers, such as Calderbank offers, are also relevant to costs, although doubling is not automatic or presumed... Where informal offers are involved, the court has a wide discretion over costs...

The costs rules respecting offers are designed to encourage the principled and reasonable settlement of litigation, and to deter litigants from taking unreasonable positions. In order to attract costs consequences, offers must be realistic, reasonable and represent a bona fide compromise or other articulable reason for settlement… [ 57 ] As with the formal offer rules, a Calderbank offer encourages litigants to pursue a fair resolution of their dispute in a reasonable amount of time and in a cost-effective manner. That objective aligns with the cultural shift in litigation by which settlement and

summary procedures are favoured over complex court proceedings. [ 58 ] Informal offers will often have a lesser impact on costs than formal offers under the Rules : Fullowka at paras 23-24 ; Chisholm v Lindsay , 2013 ABQB 157 at para 15 . However, their impact remains subject to the overarching discretion of the Court: Paniccia Estate v Toal, 2012 ABCA 397 at para 145 [ Paniccia Estate ] . [ 59 ] Formal offers contain prescribed time limits for acceptance and provide clarity about the consequences of non-acceptance that encourage deliberation.

In the absence of that certainty and contemplation, informal offers risk lesser costs awards. [ 60 ] A Calderbank offer must be a reasonable, genuine compromise and allow adequate time for consideration and acceptance: Holizki at para 47 ; EAD at para 37 . [ 61 ] The Court considers whether the offer “gave a cost advantage if accepted”: EAD at para 37 ; Holizki at para 46 .

This factor includes whether the proposal addressed the settlement of costs already incurred and the extent to which further costs are avoided by its acceptance. [ 62 ] Some of the Alberta jurisprudence states that another factor is whether “the party making the offer fared better than if the offer was accepted”: EAD at para 37 ; Eggers v Rocky Mountain Soap Company Inc , 2016 ABPC 254 at para 17 ; Kent v MacDonald , 2020 ABQB 29 at para 16 [ Kent ] .

However, other authorities conclude that the analysis is not restricted to achieving a “better result” in court. [ 63 ] In Cornelson v Alliance Pipeline Ltd , 2015 ABQB 152 , at para 48 , Verville J wrote that offers “which fall short but are close to what is awarded by the court” may be considered in assessing costs.

Similar conclusions were reached in Sutherland v Encana Corporation , 2014 ABQB 601 at paras 36 and 42 [ Sutherland ] and JR v University of Calgary , 2012 ABQB 774 at para 17 . [ 64 ] In Sutherland , Michalyshyn J held that the principle of proportionality could influence a costs award where a pre-trial settlement offer was very close to, but fell short of the trial outcome. In that case, the benefit of the marginally better trial judgment was disproportionate to the substantial litigation expense of continuing to trial and did not justify the rejection of a reasonable offer.

The successful plaintiff’s costs were reduced by 25%. See paras 57-64. [ 65 ] The Supreme Court of Canada in Hryniak v Mauldin , 2014 SCC 7 [ Hryniak ] recognized proportionality as a “touchstone for access to civil justice” and pressed for a culture shift by which judges are to “actively manage the legal process in line with the principle of proportionality”: paras 30 and 32.

The Court is to take into account “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 , quoting from Szeto v Dwyer , 2010 NLCA 36 at para 53 . [ 66 ] I agree that the costs regime under the Rules should be consistent with the Court’s imperatives of efficiency and proportionality: GO Community Centre v Clark Builders and Stantec Consulting Ltd , 2020 ABQB 203 at para 66 .

That approach aligns with the “overriding public interest in favour of settlement” and promotes the interests of litigants generally by saving them the expense

of contested legal proceedings and reduces the strain on an overburdened court system: Kelvin Energy Ltd v Lee, [1992] 3 SCR 235 at259, (SCC); Amoco Canada Petroleum Co Ltd v Propak Systems Ltd, 2001 ABCA 110 at para 27. [67] Determining costs in that manner also respects the purpose and intention of the Rules, including the foundational principles atRule 1.2, which state in part: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in atimely and cost-effective way.

(2) In particular, these rules are intended to be used … (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves ... (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments ….

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant orimpose a remedy or sanction proportional to the reason for granting or imposing it. [68] In Paniccia Estate, at para 146, the Alberta Court of Appeal acknowledged that family cases “…often properly look (for costspurposes) at whether the position of one side was clearly sufficient or reasonable, even if technically the offer did not exceed the finalmoney judgment.” [69] The proportionality principle is especially germane when assessing a chambers application for interim relief.

Spousal supportawarded on an interim basis is subject to reconciliation at trial. The chambers decision is not a final result, so an opportunity remains torevisit any deficiencies or excesses in the measure of support. Spending substantial sums to gain a result only marginally better than areasonable offer should generally be deterred. [70] The Alberta authorities indicate that another consideration is whether the offer was “unreasonably rejected”: EAD at para 37;Kent at para 16.

Numerous factors may be relevant when objectively assessing the recipient’s decision to ignore or reject the proposal,including those already mentioned. However, the offeror’s position might be enhanced if the proposal outlines the underlying rationalefor the compromise or the reasons for why the recipient should accept it. That particularity speaks to the genuine nature of the offer andencourages a contemplative response. [71] In

summary, a Calderbank offer is relevant to the Court’s deliberations about whether and to what extent costs should beawarded against the party who did not accept the offer. The formal requirements of the offer are:

a) The terms must be clear, precise and certain;

b) The terms, if accepted, must settle the costs or establish a process by which the costs will be determined;

c) The offer must be a reasonable and genuine compromise;

d) Adequate time must be given for consideration of the offer; and

e) The offer must expressly reserve the right to be utilized when costs are assessed or the recipient must be able to appreciate thatsettlement privilege will not attach to the offer when costs are determined. [72] Failure to address the last requirement is not fatal to using the offer when addressing costs because the offer is still aninformal settlement offer.

However, the recipient’s lack of understanding about the consequences of not accepting the offer mightinfluence the Court’s exercise of discretion in assessing the costs. [73] A Calderbank offer typically influences only those costs arising after service of the offer. No presumption in favour ofdoubling the costs after the date of service applies. Instead, when exercising wide discretion and weighing the impact of the offer, theCourt considers several factors including:

a) Whether a costs advantage arose by settling or avoiding costs and if so, to what extent;

b) Whether the party making the offer fared as well or better than if the offer was accepted;

c) If not, whether the offer was less than but very close to the Court’s outcome and the offer was a reasonable and proportionalcompromise in all the circumstances;

d) Whether the offer explained the rationale for the compromise or the reasons for why it should be accepted; and

e) Whether the offer was reasonably rejected. [74] The Calderbank offer before me did not explain whether acceptance of the proposal would release Mrs. Battaglini from theobligation imposed by the Consent Order to direct RBL Ltd. to pay a monthly salary to her husband. Mr. Battaglini submits that wasimplied, but the offer was unclear. The Childview

summary accompanying the offer stated that Mr. Battaglini’s income was $31,200. Inthe written submissions, Mr. Battaglini suggested that his efforts to develop his own business were resulting in a net loss of income. Areasonable

interpretation of the Calderbank offer was that his spousal support was premised on a net income that included the salaryfrom RBL Ltd., but reduced by approximately $10,000 because of his net business losses.

[ 75 ] The Consent Order remained extant. Acceptance of the offer therefore exposed Mrs. Battaglini to the possibility that enforcement of the Consent Order would be pursued independently once the spousal support was determined. [ 76 ] Another concern was the short notice for responding to the Calderbank offer – 5 days.

However, in light of my conclusion that the terms of the offer were insufficiently clear and precise, I need not make any definitive finding about the adequacy of the notice. [ 77 ] Even if the formal requirements of a Calderbank offer had been met, the Court’s outcome was much less favourable to Mr. Battaglini than his proposal. His demand for spousal support was too high. The Calderbank offer was neither close to the Court’s direction nor a reasonable and proportional compromise in all the circumstances.

Conclusion [ 78 ] Having considered all of the applicable factors under Rule 10.33, including the overall mixed success and the amount recovered for interim spousal support, I direct that the parties bear their own costs, but for an award to address the misconduct in disregarding the Consent Order. While costs are not typically addressed on an issue-by-issue basis, the isolated misconduct warrants a targeted response. [ 79 ] Compliance with the Consent Order could have been addressed through a regular chambers application or civil enforcement procedures. Indeed, Mr.

Battaglini caused a writ of enforcement and a garnishee summons to issue sometime near the Special Chambers hearing so as to accelerate payment. [ 80 ] Mr. Battaglini shall have costs under

Schedule C for a contested application without a brief. I will enhance those costs to the equivalent of Column 3, reflecting the Court’s admonition of Mrs. Battaglini’s conduct and the extra step of a Family Docket Court appearance. The costs are $1,350 payable forthwith. Written submissions delivered on January 15, 2021. Dated at the City of Edmonton, Alberta this 4 th day of February, 2021. K.S. Feth J.C.Q.B.A. Appearances: Andrew S. Wood Rand & Company LLP For the Plaintiff Deborah L. Baradziej Trilogy Family Law For the Defendant