Watkins v Glasser, 2021 ABQB 916

Court of Queen’s Bench of Alberta Citation: Watkins v Glasser, 2021 ABQB 916 Date: 20211116 Docket: FL01 34403 Registry: Calgary Between: Melissa Marie Watkins Plaintiff/Applicant - and - Joel Glasser Defendant/Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] This matter originally came before me as a ½ day domestic special. Ms. Watkins was applying for partner support and Mr. Glasser was cross-applying for child support. Both parties wanted a determination of Mr.

Glasser’s previous and current Guideline Income for the purposes of these support claims. Suffice it to say that their figures of support owing are wildly variant, based on their different approaches both to the payment of past support and to the calculation of Mr. Glasser’s income. [ 2 ] I seized myself of this hearing but adjourned it to collect some further legal research, as well as to allow Ms. Watkins some further time to commission expert evidence in response to the expert report from Mr. Gervais for Mr. Glasser.

I also raised with counsel that further consideration should be given to the type of proceeding best suited to this dispute and how much time would be required.

When we reconvened to discuss scheduling, it became apparent that additional issues had arisen between the parties in terms of how to proceed. Because that telephone conference was not recorded, I circulated my notes of the conversation, invited and received the comments of counsel, all of which will be retained until this Procedural Order is filed and any appeal period therefrom has run. Form of Hearing [ 3 ] First, Ms. Watkins has requested that the matter be scheduled for a two-day trial. Mr. Glasser wants to simply

schedule the continuation of the domestic special. Both would agree to a viva voce hearing in the alternative. [ 4 ] Their reasons are as follows: Ms. Watkins would prefer that all experts were cross-examined in court where I can properly test their credibility. This would also force Mr. Glasser to obtain an Order under Rule 5.37 for that questioning, which would allow her to seek a direction of payment for any pre-trial questioning under R.5.37(3)(c). Mr. Glasser says that, if the matter proceeds by way of application, as it began, he is entitled to cross-examine Ms. Marr and Mr.

Lawritsen under Rule 6.7 without an Order. [ 5 ] It appears that Ms. Watkins’ procedural requests are largely, if not entirely, driven by her financial circumstances. She claims to be impecunious and unable to conclude this proceeding without the contribution of Mr. Glasser to the involvement of her expert witnesses. [ 6 ] I do not believe a trial is warranted in this situation. Indeed, if viva voce testimony was needed, the proper proceeding would be an oral hearing or an application with viva voce evidence. Ms.

Watkins’ counsel argued that this would be a more effective and less costly way to receive and test the evidence of the expert witnesses. While I cannot guarantee that I will not have questions for the experts after submissions of counsel, I cannot see the necessity of a viva voce hearing of any type to decide this matter. This Court routinely deals with expert evidence submitted by way of Affidavit in support of or in opposition to motions.

Further, as was put to me by counsel, many of the issues with the expert evidence are really about the reliability of the information provided to them by the clients. [ 7 ] As I do not believe viva voce evidence is necessary, the matter will be scheduled as a continuation of the domestic special, albeit with a full day set aside for argument. It follows that no order is necessary to allow Mr. Massie to question Ms. Watkins’ expert witnesses on their Affidavits. If Ms. Watkins will not facilitate this, then her expert witnesses’ Affidavits will not be admitted as evidence.

Advance Payment of Costs [ 8 ] However, on the issue of costs, I do accept that a final adjudication of this matter might not be possible without the advance of some costs from Mr. Glasser to Ms. Watkins. I have reviewed the parties’ general financial information and note the following: 1. Mr. Glasser works as a landscaper and owns his own business. His income is obviously not agreed but using income received in personal and business accounts less all claimed expenses, it appears to be in excess of $100,000-$140,000 per annum; 2. Ms.

Watkins works as a Respiratory Therapist, having graduated with her diploma in June of 2020. She estimated her 2021 income would be $47,000. [ 9 ] The test for an award of advance costs, set out in VMH v JH , 2020 ABCA 389 at paras.13-21, has three parts: 1. Is the applicant impecunious to the point where she would be unable to proceed further without an advance award of costs; 2. Does the applicant have a prima facie case for the relief sought; and 3. Is it the type of case that warrants an award of costs? [ 10 ] I will begin by answering the last two of these questions in the affirmative.

There is a lot at stake here – at least financially - for both parties. Family law matters often involve parties with disparate incomes, as is the case here. While it is difficult to say with certainty whether Ms. Watkins is impecunious to the point that she would unequivocally have to abandon the motion, I accept that she has much less money at her disposal to continue funding what has become an unusually complicated support application. [ 11 ] I also note that she is the Respondent on Mr. Glasser’s cross-application for reimbursement to him of approximately of $170,000 he says was overpaid to her.

Thus, it is not just a matter of her decision whether to continue to pursue him for retroactive support. [ 12 ] I will therefore make an award of advance costs from Mr. Glasser to Ms. Watkins of $5,000 on a strictly “without prejudice” basis, payable forthwith. As I am hearing the ultimate one-day Special Chambers Application, I reserve my right to reallocate or recharacterize those costs at the conclusion thereof. Heard on the 1 st day of November, 2021. Dated at the City of Calgary, Alberta this 16 th day of November, 2021.

M.H. Hollins J.C.Q.B.A. Appearances: Lily Rabinovitch for the Plaintiff/Applicant Marc Massie for the Defendant/Respondent