Maurier v Maurier, 2023 ABKB 539

Court of King’s Bench of Alberta Citation: Maurier v Maurier, 2023 ABKB 539 Date: 20230925 Docket: 4803 169554 Registry: Edmonton Between: Raquel Adrienne Maurier Plaintiff - and - Ernie Maurier Defendant _______________________________________________________ Endorsement respecting Costs, Child Support Credit Clarification, and Leave to Bring an Application of the Honourable Justice W.N. Renke _______________________________________________________ [ 1 ] The parties came before me in a Special Chambers Application on December 2, 2023. My decision is reported at 2022 ABKB 856 .

The parties have not yet resolved all issues arising from the Application. I will address costs, credit for the overpayment of child support since July 1, 2023, and a request for leave to impose an obligation on the Plaintiff to pay interest on the amount of child support owing. I. Costs A. Entitlement to Costs [ 2 ] The applicable principles respecting entitlement to costs are set out in paras 24-26 of JWS v CJS , 2022 ABCA 63 : [24] Rule 10.29 of the Alberta Rules of Court , Alta Reg 124/2010 sets out the general rule that the successful party is presumptively entitled to costs.

This rule applies in family matters, including custody matters, in the same manner as in other civil matters: AE v TE , 2017 ABQB 674 at paras 4-5 . [25] “Success in family matters means substantial success, not absolute success”: DBF v BF , 2018 ABCA 108 at para 13 . [26] In assessing substantial success, the court looks at overall results, based on what the litigant was initially claiming: SLT v AKT ,

2008 ABQB 450 at para 14 . “A finding of success may be based on a finding that a party was successful on the most important issue litigated”: AE v TE at para 7 . [ 3 ] In this Application, the most important issue litigated was the determination of the Defendant’s Guideline Income. The Defendant was successful on this issue. The Plaintiff had raised numerous additional issues. She was successful on a few. None of these was particularly contentious.

Her success on some minor matters did not tip the balance against the Defendant’s entitlement to costs. [ 4 ] The Plaintiff also argued that because the Defendant had violated Practice Note 2 (not abiding by spacing guidelines and raising in his affidavit issues outside his cross-application), the Defendant was not entitled to costs. Non-compliance with Practice Note 2 should be deterred. I will return to this point below. Nonetheless, the irregularities were mild given the baseline of affidavits filed in Family Law matters and, considered by themselves, the irregularities were not serious.

The irregularities did not, either on their own or with the Plaintiff’s minor successes, bar the Defendant’s entitlement to costs. B. Costs Award 1. Matters to be Considered [ 5 ] Under r 10.31(1), before making a costs award, I must consider the matters described in r 10.33. Rule 10.33 provides as follows (with irrelevant matters omitted): 10.33(1) In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; ... (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate.

(2) In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; ... (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; ... (

h) any offer of settlement made, regardless of whether or not the offer of settlement complies with

Part 4, Division 5. 2. Assessment of Matters to be Considered (

a) Importance of the Issues [ 6 ] At issue was the proper amount of child support payable by the Defendant. The parties share parenting, but the Defendant’s income is larger than the Plaintiff’s. I consider the importance of the issue to be a neutral factor. Ensuring that the children received the proper amount of child support was important to both parties and was important to preserving the economic foundations for ongoing child support at an appropriate level.

I might observe that while parents are in a voluntary economic relationship during their time together, they remain in an involuntary economic relationship, through the operation of law, so long as child support (or spousal or partner support) remains payable. Former partners should have at least a prudential motivation to support the sustainability of this relationship. (

b) Complexity of the Action [ 7 ] The Guideline Income issue was moderately complex, involving some resolution of facially conflicting authority. I rejected the view of the accountant appointed to determine the parties’ Guideline Income. On the one hand, this factor might suggest a low costs award. The parties had to litigate this issue and the answer was not obvious. But on the other hand, the complexity of the issues should not diminish a costs award. This would have the perverse effect of diminishing costs when litigation was warranted. I view this factor as supporting substantial costs and not as diminishing costs. (

c) Result of the Action, Degree of Success, Amount Claimed [ 8 ] As indicated, the Defendant was substantially successful. His 2021 income was set at $198,035. The Plaintiff had submitted that it be set at $599,420. The result of the Application, the degree of the Defendant’s success, and the amount claimed by the Plaintiff support a substantial costs award. (

d) Irregularity in an Affidavit and Late Filing

[ 9 ] The irregularities in the Defendant’s affidavit and the Defendant’s failure to meet filing deadlines should diminish the amount of costs that would have been set absent these faults. Failure to follow the Practice Note’s directions respecting affidavits threatens the orderly resolution of matters in Special Chambers. As for late filing, I acknowledge that time was required for the Defendant to assemble his source documents and for the Defendant to obtain his own expert accounting opinion. Paragraph 53 of Practice Note 2, though, expressly contemplates that the Court may impose costs consequences for missed deadlines. (

e) Offer to Settle [ 10 ] The following matters fall to be addressed – conduct of a party tending to shorten an action and any offer of settlement made. [ 11 ] The Defendant proposed a resolution of the Guideline Income issue in his materials. A form of offer to settle was therefore on the record. My determination was substantially more favourable to the Defendant than the offer he made. In that sense, the Defendant “beat” his offer. [ 12 ] The Defendant contended that he was entitled to double costs under r 4.29. He was not.

He did not meet the strictures of r 4.24. [ 13 ] However, offers to settle outside of formal offers have historically been considered in costs awards (see, e.g., Nielsen-Daigle v Nielsen-Daigle , 2020 ABQB 84 at paras 17-20 ). Rule 10.33(2)(h), added in 2020, confirms the relevance of offers to costs: “any offer of settlement made, regardless of whether or not the offer of settlement complies with

Part 4, Division 5.” [ 14 ] The Defendant’s offer to settle merits significant consideration in the costs award. Further, I note that I had considered the application ripe for resolution, to the point that I began the application with an adjournment to give the parties the opportunity to work out a resolution. My expectation, obviously, was disappointed. [ 15 ] The Defendant referred to some communications relating to settlement during that adjournment. I have not considered those communications since they are doubtless covered by without prejudice negotiation privilege. 3.

Reasonable and Proper Costs [ 16 ] Having considered the matters described in r 10.33, I turn to setting reasonable and proper costs under r 10.31. The relevant provisions of r 10.31 are as follows: 10.31(1) After considering the matters described in Rule 10.33, the Court may order one party to pay to another party, as a costs award, one or a combination of the following: (

a) the reasonable and proper costs that a party incurred to file an application, to take proceedings or to carry on an action, or that a party incurred to participate in an application, proceeding or action, or (

b) any amount that the Court considers to be appropriate in the circumstances, including, without limitation, (

i) an indemnity to a party for that party’s lawyer’s charges, or (ii) a lump sum instead of or in addition to assessed costs ....

(3) In making a costs award under subrule (1)(a), the Court may order any one or more of the following: (

a) one party to pay to another all or part of the reasonable and proper costs with or without reference to

Schedule C; (

b) one party to pay to another an amount equal to a multiple, proportion or fraction of an amount set out in any column of the tariff in Division 2 of

Schedule C or an amount based on one column of the tariff, and to pay to another party or parties an amount based on amounts set out in the same or another column; (

c) one party to pay to another party all or part of the reasonable and proper costs with respect to a particular issue, application or proceeding or part of an action; (

d) one party to pay to another a percentage of assessed costs, or assessed costs up to or from a particular point in an action .... [ 17 ] The Defendant sought enhanced costs of $6,000 but also referred to double costs under Column 2 of $3,370. (

a) Partial Indemnity [ 18 ] In McAllister v Calgary (City) , 2021 ABCA 25 at paras 41-44 , the Court of Appeal confirmed the traditional Alberta approach of setting cost awards as partial indemnity representing about 40-50% of actual costs. At para 51, the Court of Appeal stated that ... we refrain from defining with precision the level of indemnification required in any given case. All we say is that the level of indemnification must be both meaningful and reasonable. The court’s discretion to move up or down from that level having regard to the factors set forth in Rule 10.33 or in Rule 10.2(1) remains intact.

Also, the level of indemnification may be higher or lower than the 40- 50% depending on how the litigation was conducted and other factors not necessarily having anything to do with the conduct of the litigation.

[ 19 ] In this case, I do not have (e.g.) a draft bill of costs before me. I do not have a foundation for a partial indemnity award. [ 20 ] Further, McAllister concerned an almost completed piece of protracted litigation, including a trial (see paras 3, 8, 64). I realize that the parties have a substantial litigation history, but the application before me was not a trial. [ 21 ] While McAllister confirmed that awarding costs pursuant to

Schedule C is only one option in the menu of options authorized by r 10.31 and that under r 10.31(3)(

a) costs may be awarded with or without reference to

Schedule C (paras 28, 53), McAllister also confirmed at para 59 that

Schedule C does provide “a convenient and transparent foundation for judicial determination of costs ... and may be appropriate in the ‘common stream of litigation’ ( Trizec Equities at para 27) and particularly useful and efficient in high-volume interlocutory matters such as chambers applications.” (

b) Schedule C [ 22 ] A Special Chambers application is not a “high volume-interlocutory matter” such as a morning Chambers application, in the sense of a matter heard in 20 minutes on a crowded docket. Neither, though, could a typical Special Chambers application be characterized as “a protracted piece of litigation” prosecuted from Statement of Claim to judgment, involving “arguably novel liability:” McAllister at para 3 . A Special Chambers application, at least one not involving viva voce evidence, is not a trial: McAllister at para 64 . Generally, Special Chambers applications would appear to come closer to cases in the “common stream of litigation,” attracting appropriate reference to

Schedule C. [ 23 ] In my opinion, neither principle nor the authorities confine Family Law matters (even outside family property proceedings) to Column 1: see Willick v Willick , 2022 ABQB 389 at paras 15 , 16. [ 24 ] The Defendant looked to Column 2 for the costs assessment. In my opinion, Column 3 is appropriate since the amount at issue was $401,385 (the difference between the claimed $599,420 and the determined $198,035). Column 3 applies to claims between $200,000 to $675,000.

Under item 8(1)(a), the tariff amount is $2,025. [ 25 ] In my opinion, it is appropriate to award double costs because of the settlement offer and because there was ample room and opportunity for pre-application resolution, despite the late filing. I also take into account the Defendant’s degree of success on the crucial issue. [ 26 ] Double costs for item 8(1)(

a) are $4,050. [ 27 ] I will reduce the amount of costs by $500 to reflect the late filing and affidavit irregularities. [ 28 ] I therefore set costs payable by the Plaintiff to the Defendant for the application at $3,550. [ 29 ] I do not require that this amount be paid immediately. In the next section, I have directed the repayment of over-payments commencing for the period commencing July 1, 2023. The overpayments are to be reimbursed by January 30, 2024. To avoid imposing an excessive financial burden on the Plaintiff, the $3,550 in costs shall be paid to the Defendant by April 30, 2024. II.

Child Support Credit Clarification [ 30 ] The Defendant overpaid child support. He is entitled to a substantial credit. The parties have not yet filed the Order arising from the Special Chambers Application. The Defendant has proposed that the Plaintiff repay any overpayments made since July 1, 2023 by way of a lump sum. [ 31 ] This issue was not raised in the Application. However, it was not contemplated that finalizing the Order and abiding by its determinations would have taken as long as it has.

I view the Defendant’s proposal as a clarification of my determinations or as the rectification of an omission. [ 32 ] The Plaintiff shall repay to the Defendant the amounts of any overpayments made since July 1, 2023 by January 30, 2024. This repayment is in addition to the crediting of overpayments made prior to July 1, 2023, as addressed in my correspondence of June 20, 2023. [ 33 ] In addition, a further clarification is necessary.

Given the ages and stages of the children, it may be that child support will cease to be payable by the Defendant before the pre-July 1, 2023 overpayment made by him will have been fully reimbursed by crediting against child support payable. [ 34 ] If the Defendant ceases to be obligated to pay child support for both children and if at that time the Defendant’s overpayment has not been fully retired by crediting, the Plaintiff shall, within 3 months of the date that the Defendant ceases to be obligated to pay child support, make a lump sum payment to the Defendant of the remainder of the overpayment. III.

Leave to Bring an Application [ 35 ] Defendant’s counsel sought leave to bring an Application “to have interest payable by Ms. Maurier on the credit you directed to Mr. Maurier ....” [ 36 ] This issue was not raised in the Special Chambers Application. The issue is not in the nature of a clarification of a ruling but seeks a new substantive ruling. There is no filed Application before me.

[ 37 ] I shall neither grant leave to bring the Application nor forbid the Application from being filed. I am not offering a view as to the merits of the proposed Application. A Justice in a future proceeding may determine whether the Application merits consideration. Any Justice may hear the Application. I am not waiving any requirement to proceed through Family Docket Court. Dated at the City of Edmonton, Alberta this 25 th day of September, 2023. W.N. Renke J.C.K.B.A. Appearances: Curtis Ready Miller Boileau Family Law Group for the Plaintiff Melanie Bowbell Barrister & Solicitor for the Defendant