Lutz v Lutz, 2023 ABKB 224

Court of King’s Bench of Alberta Citation: Lutz v Lutz, 2023 ABKB 224 Date: 20230418 Docket: 4803 184764 Registry: Edmonton Between: Aaron Odell Lutz Plaintiff/Respondent - and - Jody Lynn Lutz Defendant/Applicant _______________________________________________________ Costs Endorsement of the Honourable Justice T.G. Rothwell _______________________________________________________ A. Introduction [ 1 ] I heard this matter as a

summary trial on February 14-15, 2023. Mr. Lutz did not attend or participate in the trial. I made orders respecting parenting, child support, both retroactive and ongoing, and was required to divide the parties’ matrimonial property. I was also required to determine an appropriate penalty for contempt arising out of Mr. Lutz’s failure to comply with an Order of Loparco J.

[2] I delivered an oral decision on March 6, 2023 and invited submissions regarding costs. B. Position of the Parties Ms. Lutz [3] Ms. Lutz correctly notes that she was largely successful on all issues that were before the Court during the

Summary Trial. She argues that Mr. Lutz’s repeated failure to provide disclosure prior to trial, refusal to participate in pre-trial steps and absence duringthe trial are “rare, exceptional and reprehensible” and justify an award of costs on a full indemnity basis. Ms. Lutz provides a variety ofalternative awards that are less than full indemnity. Mr. Lutz [4] Mr. Lutz was served via email and given an opportunity to provide submissions. He provided none. C. Law [5] Rule 10.31 of the Rules of Court contemplates a cost award being made at the conclusion of a matter and Rule 10.33(1) setsout factors that the Court may consider, namely: (

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; (

e) the apportionment of liability; (

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. [6] Factors (a), (b), (

c) and (

d) are most relevant here. [7] Rule 10.31(2) outlines factors that the Court may consider when “deciding whether to impose, deny, or vary an amount in acosts award”. The factors that are most relevant to this matter are: (

a) The conduct or a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of theaction: (

b) A party’s denial of or refusal to admit anything that should have been admitted; … (

f) A contravention of or non-compliance with these rules or an order; and (

g) Whether a party has engaged in misconduct. [8] It is well established that: • The successful party is generally entitled to costs: r 10.29; • Costs are discretionary and subject to specific requirements in the Rules of Court; • Discretion over costs must be exercised judicially and in accordance with established principles; • In appropriate circumstances costs may be increased beyond that provided for in

Schedule C; and • Costs ought not to be oppressive. B & R Development Corporation Ltd v Trail South Developments Inc, 2011 ABQB 706 at paras 4-8; Mikkelsen v TrumanDevelopment Corporation, 2016 ABQB 255 at paras 21 and 23; Pharand Ski Corporation v Alberta (1991), (ABKB), 81 Alta LR (2d) 304 at 398; and Elder Advocates of Alberta Society v Alberta Health Services, 2021 ABCA 67 at para 14. D. Analysis

[ 9 ] I will begin by considering the factors set out under Rule 10.33. Ms. Lutz was successful in seeking her entitlement to primary parenting, retroactive and ongoing child support and I accepted the vast majority of her arguments relative to the division of matrimonial property as well. Ms. Lutz took reasonable positions in the trial and her conduct did not lengthen the trial. [ 10 ] The issues before the Court were not complex but instead were routine family law matters; however, the issues were of significant to Ms. Lutz.

Confirming support for her children and dividing the parties’ matrimonial property are important and necessary steps that allow a party to begin to move forward from a failed marriage. [ 11 ] I see no reason to depart from the default rule that the successful party is entitled to costs. [ 12 ] The more difficult issue to determine is the appropriate quantum of costs. [ 13 ] I accept that Mr.

Lutz did not cooperate in proceedings that he commenced and I am also satisfied that he deliberately refused to provide required disclosure. [ 14 ] Turning to the factors that I listed from Rule 10.33(2) I find the following: • Mr. Lutz’s refusal to participate in the proceedings necessitated additional steps being taken relative to disclosure, contempt and setting the matter down for trial. • While a party is not required to make any admissions Mr. Lutz’s failure to participate in the matter precluded the potential for any time saving admissions.

It is commonplace for parties to agree on non-contentious matter in all types of litigation, including family matters. • Mr. Lutz’s failure to provide relevant disclosure constitutes, in my view, both misconduct and non-compliance with the Rules of Court . [ 15 ] Ms. Lutz cited a number of authorities in support of her request for full indemnity costs and I note the following two decisions: Bizon v Bizon , 2014 ABCA 174 – This decision confirms that full-indemnity costs are awarded in exceptional circumstances – see para 79. This case arose in an estate context.

Brown v Silvera , 2010 ABQB 224 – Justice Moen held that the plaintiff was entitled to full indemnity costs. The facts in this are partially distinguishable. Mr. Brown’s conduct that resulted in an award of full indemnity costs included active steps to conceal assets and an orchestrated campaign to frustrate the process. Mr. Lutz’ conduct does not rise to the same level as Mr. Brown’s conduct. [ 16 ] Mr. Lutz failure to provide disclosure warrants an enhanced costs award; however, I am not satisfied that his conduct rises to the level required to make an award of full indemnity. Mr.

Lutz conduct, while undesirable, committed acts of omission as opposed to a positive course of conduct that was intended to deceive or mislead the Court. [ 17 ] I also note that I have already imposed a costs award in the amount of $7500 against Mr. Lutz in relation to his contemptuous conduct. I am aware that Ms. Luz was put to additional time and expense as a result of Mr. Lutz’s failure to engage in the process and she should be compensated for that, but Mr. Lutz’s should not be punished twice. [ 18 ] Mr.

Lutz’s conduct is deplorable and impacts upon the Court’s ability to award an accurate quantum of child support. Mr. Lutz’ conduct must be discouraged. Cost awards may be used to modify parties’ behaviour, particularly those who shirk their child support obligations. [ 19 ] Ms. Lutz, though her counsel, offers the following range of cost awards: • Full indemnity - $38,719.74; • Partial indemnity - $19,359.87; •

Schedule C – Column 1 – with double costs since April 26, 2021 and a lump sum of $3500 for a total of - $18,736.28; or •

Schedule C – Column 1 – in the amount of $14,396.28 All proposed amounts are inclusive of disbursements and GST. April 26, 2021 is the date that that Mr. Lutz was found to be in contempt of Justice Fagan’s disclosure order by Justice Loparco. The partial indemnity amount is based upon 50% of the solicitor client costs based upon the McAllister v Calgary (City ), 2021 ABCA 25 decision. Ms. Lutz suggests that a lump sum is appropriate to prevent further litigation as between the parties. I am satisfied that Ms. Lutz incurred additional costs and that an amount greater than

Schedule C is appropriate as a result of Mr. Lutz’s intransigence and that his misconduct warrants enhanced costs. Having regard to all of the circumstances and the different proposals suggested by Ms. Lutz I conclude that it is reasonable and proper to make a lump sum costs award of $20,000 inclusive of GST and disbursements. This amount recognizes the additional effort and expense visited upon Ms. Lutz and accords with McAllister .

E. Conclusion [ 20 ] Costs in the amount of $20,000 inclusive of disbursements and GST is awarded in Ms. Lutz’s favor including the costs of this application. Heard on the 14 th and 15 th day of February, 2023. Dated at the City of Edmonton, Alberta this 18 th day of April, 2023. T.G. Rothwell J.C.K.B.A. Appearances: Plaintiff/Respondent: did not attend. C.A. Lawrence Lawrence & Tkachuk for the Defendant/Applicant