Fremstad v Anderson, 2021 ABQB 918

Court of Queen’s Bench of Alberta Citation: Fremstad v Anderson, 2021 ABQB 918 Date: 20211117 Docket: FL01 29729 Registry: Calgary Between: Nicole Fremstad Applicant/Plaintiff - and - Derek Anderson Respondent/Defendant _______________________________________________________ Endorsement on Costs of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Introduction [ 1 ] This matter came before me as a Family Special Chambers application. [ 2 ] The issues before the Court were to determine retroactive and on-going adult interdependent partner support claimed by Ms.

Fremstad, including the issues of entitlement, duration, quantum and second, the proper apportionment of the net sale proceeds from the sale of the family home.

[ 3 ] The parties positions at the time of the chambers hearing were as follows: Ms. Fremstad:

a) A declaration that the parties had been in a relationship of interdependence;

b) A declaration of irreconcilability;

c) Retroactive adult interdependent partner support;

d) On-going adult interdependent partner support;

e) Apportionment of the net proceeds of the sale of the home held by both parties in joint tenancy. Mr. Anderson:

a) He agreed the parties were in a position of interdependence;

b) He was not opposed to a declaration of irreconcilability;

c) That Ms. Fremstad did not have entitlement to adult interdependent partner support; and

d) He agreed initially to an equal sharing of the net proceeds of the sale of the family home but requested that Ms. Fremstad repay him for expenses that he had paid prior to the sale. [ 4 ] At the hearing of this chambers application I found that the parties had lived in a relationship as Independent Adult Partners and that there was irreconcilability. I granted such a declaration. [ 5 ] I found that Ms. Fremstad was not entitled to adult interdependent partner support and that the net proceeds from the sale of the home be divided between the parties 50/50.

My reasons are contained in my decision cited as 2021 ABQB 553 . The position of the parties on costs [ 6 ] Counsel for Mr. Anderson claims costs with Mr. Anderson being the successful party. Her client Mr. Anderson succeeded in having the claim for adult interdependent partner support dismissed. [ 7 ] Counsel for Ms. Fremstad states that there should be no costs awarded to either party as there was a split or mixed results, and that Ms. Fremstad was successful with respect to her claim in being awarded half of the proceeds from the sale of the home. [ 8 ] Mr.

Anderson through his counsel argues that he has had substantial success and that is all that is necessary for an award of costs. He cites Katrib v Katrib , 2008 ABQB 162 , for the principle that the trier of fact has the discretion to award amounts other than as prescribed in the tariff. Counsel argues Broda v Broda , 2003 ABQB 257 , which held that the test for awarding costs is not “absolute” but rather “substantial success”: paragraph 14. [ 9 ] A successful party is presumptively entitled to their costs of the application payable forthwith. This is a consequence that all unsuccessful parties know they face.

In this case, Mr. Anderson was essentially wholly successful. The Court accepted his position that Ms. Fremstad was not entitled to adult interdependent partner support and that, although he did not receive everything he asked for with respect to the division of the Family Home proceeds, he was substantially successful. [ 10 ] I also note that costs must be reasonable and proportional to the legal work done and other circumstances that impact on the case: see GO Community Centre v Clark Builders and Stantec Consulting Ltd , 2020 ABQB 203 .

As well, the Court may consider a range of factors, including the degree of success of each party, the importance of the issues, the complexity of the action and the parties conduct therein: see McAllister v Calgary (City) , 2021 ABCA 25 at paragraph 23 . [ 11 ] This Family Law Special was competently argued, the issues were not factually or legally complex, and the questions in issue were straightforward. This is relevant with respect to a settlement offer made by Mr. Anderson prior to the Family Law Special. That offer represented that Mr.

Anderson was prepared to pay half of the net sale proceeds and a further small but meaningful non-taxable lump sum payment as full and final settlement of all adult interdependent partner support claims. That offer of settlement was not accepted. Mr. Anderson now states that he is entitled to double costs on this matter. [ 12 ] The position of counsel for Ms. Fremstad is rather straightforward. She argues that is “trite law no costs should be awarded where there is mixed success outcome in the matter”.

Indeed he goes on “where parties enjoy a split success as an outcome of an action the parties should bear their own costs.” [ 13 ] Of the two substantial and contested issues that were before me at the special chambers application, I am satisfied that Mr.

Anderson was the successful party and he is entitled to double column one costs for the Family Special Chambers Application. [ 14 ] In Katrib cited above, Madame Justice Read said this at paragraph 19: Alternatively, it could be interpreted to mean that Column 1 is to be presumptively used for divorce and corollary relief matters and ‘also’ for those matters which have no monetary amounts, such as injunctions. [ 15 ] And she goes on in paragraph 20 to state that “she prefers this

interpretation for three reasons”:

First, corollary relief matters include spousal support and child support and these necessarily involve money…Secondly, I note that in the introductory notation to

Schedule C, the phrases "Divorce and corollary relief matters" and "matters which have no monetary amounts" are separated by the word 'and', raising the presumption that what was intended was a reference to two separate instances where Column 1 should be used. Thirdly, it is a fundamental principle of statutory

interpretation that the legislature does not include meaningless language or surplusage: R. Sullivan, Sullivan and Driedger on the Construction of Statutes , 4th ed. (Markham: Butterworths, 2002) at 158-61. If this is so, then "Divorce and corollary relief matters" must mean something in addition to "matters which have no monetary amounts". [ 16 ] Justice Read concludes in paragraph 21 “for these reasons I have concluded that the introductory notation to

Schedule C applies to Divorce and corollary relief matters generally and that these are not limited only to those which have no monetary amounts.” [ 17 ] However, she goes on “I am not satisfied that this introductory notation refers to matrimonial property division”. I agree with this conclusion and note that the net sale proceeds from the sale of the Family Home was less than $50,000. Therefore, I am satisfied that the award of costs will be in column 1 and pursuant to item 8 of division 2. I set the costs payable by Ms. Fremstad to Mr. Anderson in the amount of $2,700 plus reasonable disbursements.

Dated at the City of Calgary, Alberta this 17 th day of November, 2021. W.P. Sullivan J.C.Q.B.A. Appearances: Ayodeji Otiti for the Applicant/Plaintiff Elise J. Lavigne for the Respondent/Defendant