Brill v Brill, 2022 ABKB 827

Court of King’s Bench of Alberta Citation: Brill v Brill, 2022 ABKB 827 Date: 20221208 Docket: 4801 139406 Registry: Calgary Between: Reizel-Vered Brill Plaintiff - and - Erez Brill Defendant _______________________________________________________ Endorsement of the Honourable Justice D.B. Nixon _______________________________________________________ This Endorsement is issued in lieu of Oral Reasons for Judgment. I. Introduction [ 1 ] This is a Costs decision in this action (the “ Action ”). The matters underlying this Costs decision have been ongoing for some

years. [ 2 ] An Endorsement concerning a number of issues was issued by me on February 15, 2022 (the “ February 2022 Endorsement ”). Mr. Brill was the Defendant/Applicant in respect of the February 2022 Endorsement, and he was the substantive winner in that decision. II. Issues [ 3 ] What amount of Costs should be awarded, and to which party? III. Facts [ 4 ] Mr. Brill and Ms. Brill have two children: Jonathan Brill (“ Jonathan ”), born July 2, 2002; and Ethan Aaron Brill (“ Ethan ”), born June 8, 2005 (collectively, the “ Brill Children ”).

The Brill Children have been the center of this family litigation. [ 5 ] The Brill Children currently live in Canada with Mr. Brill. Jonathan has not had any contact with his mother for approximately five years. That was his decision. [ 6 ] The litigation between these two parties has been ongoing since February 2009. The Court procedure card is 21 pages long, and that procedure card lists 20 different judges as having heard various applications over the 13 years that this file has been within our court system. [ 7 ] Each party blames the other for inappropriate conduct.

The tensions during the hearings have been evident to all concerned. [ 8 ] In his submissions, Mr. Brill indicated he was forced to spend over $130,000 in legal fees to recover less than $50,000 . IV. Analysis [ 9 ] This application requires me to determine the appropriate of level of indemnification a successful party to protracted litigation should receive in Costs from the losing party.

In considering this issue, my discretion is subject both to the Alberta Rules of Court and the need for me to act judicially on the facts of this case: McAllister v Calgary , 2021 ABCA 25 at para 18 . [ 10 ] The considerations which go into the determination of the amount of a Costs award are set forth in Rule 10.33. The considerations include the result of the Action and the conduct of the parties: Rule 10.33(1)(

a) and (f); and McAllister at para 23 . After I have considered the factors described in Rule 10.33 with respect to quantum, I am directed to Rule 10.31 which provides options for making costs awards: McAllister at para 24 . Of particular relevance is Rule 10.31(1)(d), which gives me the authority to direct one party to pay to another party a percentage of assessed costs: McAllister at para 24 . [ 11 ] Rules 10.31(1) and 10.33 lay out a framework for assessing costs and making cost awards.

However, those Rules provide little guidance as to what quantum of Costs indemnification constitutes “reasonable and proper costs”: McAllister at para 31 . [ 12 ] In my view, a “reasonable and proper costs” award involves a payment by the unsuccessful party to the successful party to indemnify the latter party for expenses incurred as a result of the conduct of the unsuccessful party: McAllister at para 33 .

In considering matters, I am of the view that the term “Costs” in this context must carry the general inference of being for the purpose of indemnification or compensation: McAllister at para 34 . [ 13 ] The intention of a Costs awards is to balance the unfairness of requiring a successful party whose conduct is not blameworthy to bear any costs and the chilling effect on parties bringing or defending claims if the unsuccessful party is required to bear all the costs: McAllister at para 38 .

However, when the successful party is not without blame, I need to take that factor into consideration. [ 14 ] As the Applicant, Mr. Brill seeks Costs on an indemnity basis or, in the alternative, enhanced Costs. At a minimum, Mr. Brill asserts that he is entitled to receive 40-50% of the legal fees he has incurred since my appointment as the Case Management Justice: see McAllister at para 51 . On this basis, the minimum amount he seeks is in the range of $52,000 to $65,000 ($130,000 @ 40% to 50%). [ 15 ] Ms. Brill asserts that this case is not a conventional matter.

Notwithstanding that she lost, she asserts that no Costs should be awarded against her. [ 16 ] In my view, neither party is innocent in these proceedings. Both Ms. Brill and Mr. Brill lost perspective during their ongoing debate concerning the Brill Children and the associated expenses. Concerning Mr. Brill, this determination is supported by the fact that he spent over $130,000 in legal fees to recover less than $50,000. The absurdity of this is highlighted by the fact that Mr. Brill spent this amount in circumstances where he consistently maintained he only earned in the range of $24,000 per year. [ 17 ] Mr.

Brill consistently characterized himself as the victim in the various proceedings. In my view he is not innocent. During one of the many hearings, I observed inappropriate conduct by Mr. Brill in the courtroom. At that time, I indicated that he would be asked to exit the Court if I observed any such further conduct. [ 18 ] While I acknowledge that Mr. Brill is the substantive winner in the proceedings that ultimately resulted in the February 2022 Endorsement, I am bothered by his aggressive behaviour on certain various matters, including financial issues.

This is best illustrated by his assertions in respect of the Registered Education Savings Plan (“ RESP ”) that was established for the Brill Children (the “ Brill RESP ”).

[ 19 ] As I noted in the February 2022 Endorsement, the Brill RESP had an investment balance of $70,610.56 as of December 31, 2020. Mr. Brill tried to assert that he had ownership in the Brill RESP. I disagreed. [ 20 ] As I outlined in the February 2022 Endorsement, the purpose of a RESP is to fund the education costs of a child or a grandchild (the “ Beneficiaries ”).

That being the case, the value in the RESP at the time a matrimonial break-up is irrelevant to the division of matrimonial property because the value therein at that time is attributed to the Beneficiaries of that fund: see VLG v WAJ , 2020 ABQB 105 at paras 36 , 37, 41, 42 and 54; see also Delorme v Delorme , 2017 ABQB 699 at paras 97 and 98 . [ 21 ] The Beneficiaries of the Brill RESP are the Brill Children. Based on the evidence before me in the earlier hearings, Mr. Brill did not use any of the funds in the Brill RESP to fund the first semester fees incurred by Johnathan at university. Instead, Mr.

Brill left funds untouched in the Brill RESP. Further, he included Jonathan’s first semester fees in the

section 7 expenses that he sought to recover from Ms. Brill. In the circumstances of this case, I found neither of those steps to be appropriate. [ 22 ] In my view, the steps that Mr. Brill tried to effect concerning the Brill RESP was a form of double dipping. He tried to keep the Brill RESP for his own benefit and also tried to recover some of Jonathan’s educational expenses from Ms. Brill by framing those expenses as

section 7 expenditures. [ 23 ] I further considered the conduct of Mr. Brill in respect of the Brill RESP and his assertions that the conduct of Ms. Brill equated to the financial bullying of him. In my view, the financial aggressiveness of the parties went both ways. V. Conclusion [ 24 ] Costs are always in the discretion of the Court. When I consider all aspects of this file, including the fact that Mr. Brill was the substantive winner on most issues, I am compelled to award costs in his favor.

As to the amount, I exercise my discretion and award a Cost amount by reference to the range reviewed in McAllister , but with an additional discount because of Mr. Brill’s conduct. Taking all factors into consideration, I arrive at an award of Costs in the amount of $20,800 in his favour. I calculated this amount by reference to 40% of the lower end of the McAllister range ($52,000 at 40%).

I factored in the additional 40% discount because I am of the view that his conduct warranted that further reduction. [ 25 ] While there are many reasons that this is an unusual case, I determined not award a higher amount to Mr. Brill because of the nature of his conduct and his aggressive financial positions. To reiterate the point, he is not an innocent party in these proceedings. I make that comment because his actions contributed to the 21-page procedure card. VI. Other Matters [ 26 ] Mr. Brill comments in his submissions that there is no way to enforce payment in Israel.

He has leave to come back before me to address that procedural issue if he needs the assistance of the Court. Costs Submissions received on the 28 th day of April, 2022; 16 th day of May, 2022; and 1 st day of December, 2022. Dated at the City of Calgary, Alberta this 8 th day of December, 2022. D.B. Nixon J.C.Q.B.A. Appearances: Reizel-Vered Brill Self Represented Plaintiff Bradley Y. Minuk for the Defendant

Appearance by Submissions: William T. Aaron, KC for the Plaintiff