LISA MARIE GROENVELD Plaintiff - v. -, 2003 ABQB 281

Groenveld v. Groenveld, 2003 ABQB 281 Date: 2003 03 27 Action No. 4812 004966 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF WETASKIWIN BETWEEN: LISA MARIE GROENVELD Plaintiff - and - ALLAN TRACY GROENVELD Defendant _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MADAM JUSTICE S. J. GRECKOL _______________________________________________________ APPEARANCES: Tina Huizinga Barr Picard For the Plaintiff Willam A. Herman Ross, Todd & Company

for the Defendant I. FACTS [ 1 ] The Defendant in this divorce action is seeking costs from the Plaintiff. The Plaintiff originally sought joint custody of the two children of the marriage, their primary residence to be with her and reasonable access to be granted to the Defendant father. The Defendant in turn sought joint custody of the children with shared residence. [ 2 ] During the period of the parties’ separation, the primary residence of the children was with their mother.

On June 6, 2001, Moreau J. granted an Order directing that a custody and access assessment be conducted, with the Defendant initially to pay the costs of the assessment. The Defendant, however, was granted leave to argue the question of costs at the trial. [ 3 ] By agreement of the parties, Mr. Hrushka conducted the assessment. The Plaintiff at the time was involved with a man whose place of residence was out of the jurisdiction. Given that there was a possibility she might move to join him, Mr.

Hrushka recommended joint custody with shared residence, and if the Plaintiff relocated, primary residence of the children to be with the Defendant. The Plaintiff did not accept this recommendation. [ 4 ] As it appeared that Mr. Hrushka had not conducted a child-centered assessment, the parties agreed d uring the trial in June 2002 that a second assessment should be conducted by Dr. Richard Spellisey. The trial was adjourned for that purpose. [ 5 ] Dr.

Spellisey’s report did not include a specific recommendation, but was a thorough assessment of the circumstances of the parties and the children. [ 6 ] Two days before the continuation of the trial, the parties settled their custody and access dispute. They agreed to joint custody of the children with shared residence, and agreed that if the Plaintiff relocated, the primary residence of the children would be with the Defendant. II. ARGUMENTS OF THE PARTIES [ 7 ] The Defendant now submits that he was the successful party in this action and that the Plaintiff was intransigent.

He argues that he was forced to proceed to trial and to incur expenses which would not have been necessary had the Plaintiff been reasonable. The Defendant paid the costs of the Hrushka assessment, Mr. Hrushka’s witness fees, and one-half of the cost of the Spellisey assessment. He points out that the Plaintiff finally agreed to his position: joint custody and shared residence. [ 8 ] The general rule with respect to costs is that, in the absence of special circumstances, the successful party is entitled to costs.

The Defendant seeks application of this rule, and asks specifically that an Order be granted that the Plaintiff pay him all taxable costs; including the costs of the Hrushka assessment, the Hrushka witness fees, and the cost of the Spellisey assessment paid by him. [ 9 ] The Plaintiff notes that Dr. Spellisey’s report was received on Friday, September 6, 2002 and settlement negotiations commenced on Monday, September 9 th . The negotiations essentially were completed by September 10 th , the trial dates were abandoned, and a Consent Order subsequently was entered. The Order does not reference costs.

The Plaintiff argues that, given their late receipt of the Spellisey report, clearly it was not her fault that settlement was only reached on the eve of trial. She maintains that the Spellisey report did not provide any recommendations, that the purpose of the rules on costs is to facilitate settlement, and that to penalize a party with costs after settlement has been achieved is contrary to that purpose. Finally, she submits that the settlement precludes any claim by the Defendant for costs.

[ 10 ] The Plaintiff contends that, while there is no rule that each party should bear their own costs in custody and access proceedings, generally it is accepted that the parties to such matters are acting on what each believes is the best interests of the children. In this case, she argues that each party should bear their own costs for the proceedings, that no additional costs should be awarded with respect to any expert evidence, and that she should be awarded the costs of this application. III.

ANALYSIS [ 11 ] The issue in this case is whether a party whose position has won the day through a negotiated settlement ought to be awarded costs by the Court. [ 12 ] In Alberta, it seems there has been an historical disinclination to award costs in custody cases where the parents, in good faith, are pursuing what they believe to be the best interests of the children. In Henry v. Pham (1987), 1987 ABCA 200 (CanLII) , 10 R.F.L. (3d) 418 (Alta. C.A.) , Stevenson J.A, wrote at p. 419: There is no general rule respecting costs in custody questions.

We think it significant that the guardians were maintaining a consent order, and, on the judgment, were genuinely seeking a judicial determination of what was in the best interest of the child. That determination clearly was not an easy one. It required a very careful assessment of the evidence and a nice balancing of the competing interests. No party can be said to have improperly or unnecessarily invoked the court. Nor was there a question of success, having regard of the real issue - the child’s welfare.

It was a case that had to be heard. [ 13 ] Some cases have suggested, on the basis of Henry , that a principle has arisen that in matters of custody and access, each party should bear their own costs: Marshall v . Butt (1996), 1996 CanLII 19960 (AB KB) , 188 A.R. 118 (Q.B.) . Recently, in St. Laurent v. St. Laurent , 2002 ABQB 899 , [2002] A.J. No. 248 , online: QL (AJ), Sanderman J. dealt with costs in a situation where shared custody had been ordered, with the mother being primary caregiver and the father having a complex, generous access arrangement.

The mother developed a relationship with a man with whom she intended to establish a home for her children and his in a community fifty miles from Edmonton. Mr. Justice Sanderman directed that the access regime continue. At para. 15 he wrote that: “...both parties will bear their own costs. When parents go to court in order to advance a position that they each believe is in the best interest of a child of the marriage, costs should be born equally and not set against one party.” Johnstone J. in Low v .

Robinson , 2000 ABQB 399 (CanLII) , [2000] 274 A.R. 377 , concluded at para. 13 that while there is no strict rule, the Court has the discretion to order that each party bear its own costs on custody and access issues. [ 14 ] In their comprehensive paper, Costs in Family Law , presented to the National Judicial Institute’s Family Law Seminar, February 12-16 , 2002, Mark M. Orkin, Q.C. and Marie L. Gordon suggest at pps. 47 to 49 that the tide is turning toward the usual rule that, ordinarily, costs should follow the event: With the advent of cases such as Scott v.

Scott [ (1993), 1993 CanLII 16331 (AB KB) , 144 A.R. 264 (Alta Q.B.) ], however, custody cases were brought into the main fold of civil and general family litigation including the application of provincial Rules of Court to costs considerations. In this newer era, litigants in custody cases were treated no differently than any other civil litigants and were required to exercise the same sober pre-trial costs risk-assessment as everybody else before engaging the trial process. Costs, while in the discretion of the Court, began to follow the event in a more predictable and purposive fashion.

And with the introduction of specialized Family Law Rules, the scope of discretion in custody cases is narrowed even more.

Judges are still loath, however, to relinquish their ultimate authority to make cost awards fair in custody cases notwithstanding the applicability of Rules that are driven by success and result... . [ 15 ] The authors go on to list the factors that influence the exercise of discretion, such as absence of bad faith; the maintaining of a reasonable but unsuccessful position on custody and access; the impact of a costs award on an unsuccessful litigant’s finances generally, and on the balance achieved by other awards made by the same judge (i.e. spousal support, child support, property settlement etc.); the impact of a costs award on an individual’s ability to care for children or pay ongoing child support; the presence of an assessment that fully or partially supports the position of an unsuccessful party; the fact that the successful party has not come to Court with “clean hands”; and the winner’s behaviour being worthy of censure rather than reward.

[ 16 ] The good sense of the approach that costs follow the event, with the flexibility of discretion to redress fairness issues, is that the parties must assess their prospects of success realistically and work towards a settlement that reflects the best interests of the children, since that should be the result of the Court’s best efforts. [ 17 ] Here, the parties embarked on litigation with each sincerely pursing an Order they felt would be in the children’s best interests.

During the time the matter was before the Court, the personal circumstances of the Plaintiff changed so that she planned to set up her home with a new partner out of the jurisdiction in which the family had resided. Through no fault of the parties, the first jointly- sought expert report was deficient. The second report was prepared by an assessor who went out of his way to meet the time-lines of both the beginning of the school year and the dates of the resumption of the trial.

While thorough, the report did not make a specific recommendation, but precipitated settlement discussions when received on the eve of trial. The matter was resolved, no doubt by each party weighing the respective risks of their positions. They did not advert to the issue of costs in their settlement. [ 18 ] In my view, it is not open to one of the parties to a settlement, whether a custody and access settlement or otherwise, to return after the successful conclusion of settlement discussions to put one last demand on the table.

Inherent in good faith negotiations is the principle that all matters in issue will be disclosed and discussed, and be put to bed if possible, or returned to the adversarial process if not. [ 19 ] The Defendant should have advised the Plaintiff during negotiations that it was his intention to return to the Court for an Order for costs. With full notice, the Plaintiff may have attempted compromise. At least she would have been put on notice that, failing agreement, the matter would be pursued by application to the Court.

It is not open for a party to remain silent on an issue he views as outstanding, only to assert his position after the deal is done.

The other party may be left with the false sense that the entire matter has been the subject of negotiations, and may have crafted her position accordingly. [ 20 ] The integrity of the process would be compromised if the Court were to countenance or approve an application for an award of costs after the parties have arrived at a settlement in good faith where no claim for costs has been advanced during settlement discussions, and where no reference has been made to costs in the settlement reached. The settlement in these circumstances is tantamount to an agreement that costs will not be pursued. IV.

CONCLUSION [ 21 ] The Defendant’s application for costs is denied. The Plaintiff, entirely successful in the result, shall have her costs of this application, according to the Rules. HEARD on the day of February 6, 2003. DATED at Wetaskiwin, Alberta this 27 th day of March, 2003. __________________________ J.C.Q.B.A.