TM v KM, 2021 ABQB 936

Court of Queen’s Bench of Alberta Citation: TM v KM, 2021 ABQB 936 Date: 20211123 Docket: 4801 172528 Registry: Calgary Between: T.M. Plaintiff (Defendant by Counterclaim) - and - K.M. Defendant (Plaintiff by Counterclaim) _______________________________________________________ Costs Decision of the Honourable Madam Justice B.E.

Romaine _______________________________________________________ [ 1 ] This decision with respect to costs arises from a trial relating to questions of mobility, parenting, division of matrimonial property and ongoing and retroactive child support in a high conflict family law context. [ 2 ] The trial litigation in this case focused mainly on TM's application for shared parenting and KM's cross-application to move their child from Alberta to Ontario.

Ancillary to that, given the attention paid to those issues at trial, were issues of child and spousal support and property division. [ 3 ] TM was entirely successful on the mobility and parenting issues. While there may have been small adjustments in his property claim as presented at trial, on an overall basis, he was the successful party.

[4] Although a significant part of the trial involved the issues of mobility and parenting, the Alberta Court of Appeal hasconfirmed that there is no presumption against costs in custody cases and that the standard rule, that costs usually follow the event, butthat they are discretionary, continue to apply: Metz v Weisgerber (2004) 2004 ABCA 151 , 243 D.L.R. (4th) 220 (Alta C.A.) atpara 47. [5] I also note that, while in family law matters such as divorce and child support, column 1 of

Schedule C of the Rules of Courthas been used as a presumptive starting point, that presumption does not apply to matrimonial property divisions: Smith v Smith, 2016ABQB 291 at para 10, upheld by the Court of Appeal at 2016 ABCA 376. [6] TM seeks costs, either on a full indemnity basis, or as calculated under column 3. In support of his submission for fullindemnity costs, TM asserts that KM lengthened the litigation in a number of ways, including the following: (

a) In March, 2019, TM proposed that the parties use mediation/arbitration to settle all financial matters, indicating that he wasstill largely in agreement with a financial settlement reached in previous mediation. However, KM declined this proposal. TM alsoproposed in conjunction with this that there be a two-day trial on his shared parenting application, instead of the four-day trial thatensued. (

b) On March, 2019, when meeting with Court Case Management counsel, counsel for KM insisted that an existing peace bondprecluded the parties from being in the same room, requiring Court Resolution counsel to stand down the meeting and attend toobtaining an order allowing this. While the delay caused by this was not significant, it illustrates the highly litigious approach taken byKM throughout this litigation. (

c) At the conclusion of the trial, this Court ordered KM to provide her address to TM. She did not comply, and TM wasrequired to return to the Court for further direction. This Court ordered KM to provide the address by December 20, 2019, at 9 a.m. Sheprovided it to TM at 7 a.m. the morning of December 20, 2019. TM says that he did not know until then that KM had moved from HighRiver to Calgary. [7] In addition, I note that on October 23, 2020, prior to trial, TM served an offer to settle property on KM. It was declined.

TMwas more successful than that offer at trial. [8] I also note that the litigation began when KM removed the child from Alberta without TM's consent or knowledge, whichrequired TM to apply for and obtain an order for KM's return of the child to Alberta. While this was a failure to act as a responsibleparent, it was also a failure to act as a responsible litigant in the circumstances of this case. [9] KM submits that TM was guilty of misconduct during the litigation and should not be entitled to costs on that basis.

KMcites a number of incidents, some of which relate to settlement negotiations that should have been privileged, and most of which were notadduced in evidence during the trial. TM also cites incidents that are inappropriate to consider without giving KM a chance to respond tonew allegations. I do not intend to have a retrial over allegations of misconduct. In the circumstances, neither party's alleged misconducthas been a factor in this costs decision. [10] TM's claim for indemnity costs amounts to $78,524, inclusive of disbursements. His claim under column 3 of

Schedule Camounts to $61,180, inclusive of disbursements. [11] While I am not satisfied that factors exist that would give rise to an award of indemnity costs, I have reviewed TM's scheduleof column 3 costs.

I find it reasonable and appropriate, with a few adjustments. [12] While TM represented himself for part of the trial, he was assisted significantly by various counsel at different stages of thelitigation, and was represented by counsel during the property portion of the trial. [13] With respect to costs sought by an unrepresented party, the comments of the Court of Appeal in Dechant v Stevens, 2001ABCA 81 at para 21 are particularly helpful: When awarding costs above disbursements for the unrepresented litigant, the court must look at the particular facts of each case. Was thematter complicated?

Was the work performed of good quality? Did the self-representation result in unnecessary delays? Did the litiganttake up an unreasonable amount of time of opposing parties or the courts? Did the litigant lose time from work? In general terms, what isthe lost opportunity of the unrepresented litigants? What would they have earned if not required to prepare their own case? Did the otherside take advantage of the fact that they were facing unrepresented litigants by taking frivolous and unnecessary steps to thwart thatlitigant? Did the other side refuse to entertain reasonable requires to discuss settlement?

What is an appropriate amount for the issuesinvolved? All of the factors set out in r. 601(1) which are relevant in a particular case should be considered when selecting theappropriate costs award. (emphasis added) [14] TM acted reasonably throughout the trial, and did not cause delay during the litigation. He had clearly spent a great deal oftime on his submissions, which were careful and thorough. I am satisfied that his claim for costs for stages of the litigation when he wasunrepresented is reasonable, compensates him for lost opportunity, and does not over-compensate him, with the exception of thefollowing:

a) As TM was unemployed when he was questioned on the days that he was unrepresented, I have deleted $8,106 from his claim ofcosts;

b) As TM's offer to settle was not in compliance with Rule 4.24, I have not awarded him double costs on the property issue. His claim for costs post the offer is therefore $16,650. I have allowed his claim for the assistance of counsel at trial and post-trial.

c) I have deducted the amount claimed for the application before Pentelchuk, J. as counsel for KM submits that no costs were awarded. [ 15 ] This reduces TM's claim for costs under column 3 to $48,300.79. [ 16 ] There is no reason to refuse costs to TM for case management attendances (see section 9(1) of

Schedule C), nor to refuse costs for consent orders (see section 6(1)), unless costs have been addressed in those orders. [ 17 ] As set out in paragraph 14 of Dechant , it is appropriate to compensate TM for ad hoc advice from his various legal counsel to help guide his preparation for and conduct at trial and with respect to pre-trial matters. [ 18 ] TM requests that a cost award be a lump sum, set off against the amount he is required to payout to KM for her share of the value of the matrimonial home.

Given the nature and history of the litigation, and the likelihood that TM would have to incur further costs and delay if the costs award was submitted to taxation, I find a lump sum award of costs to be appropriate in this case. [ 19 ] Unfortunately, as only costs were reserved for determination post judgment, I am unable to set-off an award of costs against TM's obligation to pay out KM's share of the property.

Nor am I able to direct that the joint matrimonial loans be paid from TM's share of the proceeds of the matrimonial home sale, or set off against arrears of child support, if any exist. [ 20 ] I therefore award TM costs in the lump sum amount of $48,300.79, payable forthwith. Dated at Calgary, Alberta this 23 rd day of November, 2021. B.E. Romaine J.C.Q.B.A. Appearances: Sonja Lusignan For the Plaintiff (Defendant by Counterclaim) Kathryn Tweedie for the Defendant (Plaintiff by Counterclaim)