JS v JD, 2023 ABKB 288

Court of King’s Bench of Alberta Citation: JS v JD, 2023 ABKB 288 Date: 20230508 Docket: 4803 190909 Registry: Edmonton Between: JS Plaintiff - and - JD Defendant _______________________________________________________ Endorsement on Costs of the Honourable Justice Susan L. Bercov _______________________________________________________ I. Introduction [ 1 ] On March 15, 2023, I rendered my written Decision following a trial of this matter: JS v JD , 2023 ABKB 155 . The parties do not agree on costs.

The parties provided written submissions to me on the cost issues. [ 2 ] JS seeks costs of the trial under Column 2 with double costs after his offer to settle on October 22, 2022. JD argues that she was substantially successful and seeks costs.

II. Legal Principles [ 3 ] The legal principles that I must apply are not in dispute. They are: A. Rule 10.29 of the Alberta Rules of Court sets out the general rule that the successful party is presumptively entitled to costs. B. The general rule applies in family matters, including parenting matters, in the same manner as in other civil matters: AE v TE, 2017 ABQB 674 . C. “Success in family matters means substantial success, not absolute success”: DBF v BF , 2018 ABCA 108 .

D. “In assessing substantial success, the court looks at overall results, based on what the litigant was initially claiming”: SLT v AKT , 2008 ABB 450. E. “A finding of success may be based on a finding that a party was successful on the most important issue litigated”: AE v TE F. Enhanced costs may be awarded where there has been misconduct in the litigation: King v MacDonald , 2022 ABKB 849 . G. Rule 4.29 provides for double costs where a Plaintiff makes a formal offer to settle that is not accepted and the Plaintiff obtains a judgment that is equal to or more favourable than the offer. H.

While costs are discretionary, the discretion must be exercised in a principled way: Blaze Energy Ltd. v Imperial Oil Resources , 2014 ABQB 5098 . I. The non-exhaustive list of factors enumerated in Rule 10.33 help guide the discretion. III. Position of the Parties [ 4 ] While JS concedes that he was not successful on all issues, he argues that he achieved substantial success.

He was successful in obtaining sole decision making, he was successful in the parenting schedule, with a minor variation, he agreed to maintain the children MS and RS on his medical plan, he was successful in attributing income to JD, and he provided for spousal support to JD in an amount greater than what the judgment required. He argues that costs should be calculated using Column 2 and that he should receive double costs after October 22, 20022 because his Formal Offer to Settle was more generous than the Judgment granted at trial.

He also argues that JD engaged in misconduct that should be considered in determining costs. [ 5 ] JD disagrees that JS was substantially successful, and she disputes that JS’s Formal Offer to Settle was more generous that the Judgment granted at trial. JD argues that, although not successful on all issues, she was substantially successful and should receive her costs. At the very least, she argues that success was mixed. IV.

Analysis [ 6 ] There were several issues determined at trial: parenting, decision making, whether income should be attributed to JD, ongoing child support, ongoing spousal support, exemptions, and the division of matrimonial property. Some of the issues were interrelated. There was divided success. [ 7 ] Looking at the overall results of the trial, based on what JS and JD were claiming, for the reasons that follow, I disagree that either JS or JD achieved substantial success. [ 8 ] While JS was successful on decision making, I disagree that he was successful in the parenting schedule, with a minor variation.

Notwithstanding the opinion of Dr. Martfeld that shared parenting was in the best interests of LS, JS argued for increased parenting time by way of a parenting order providing primary care to JS with JD having large and liberal access at the discretion of LS. I granted shared parenting with increased parenting time to JD. Parenting was a significant issue at trial. [ 9 ] Although JS was successful in imputing income to JD, JS was seeking child support from JD of $412.00 per month. He argued that he should pay spousal support of about $38,000.00.

JD recovered a spousal support award of about $105,000.00 and JS was ordered to pay child support. [ 10 ] Regarding matrimonial property, JS claimed exemptions totalling $42,500.00. I awarded JS $19,625.00, that JD conceded was proper. I also awarded JD about $11,000.00 that JS disputed. [ 11 ] I also disagree with JS that his Formal Offer to settle was more generous than the Judgment granted at trial. In the Formal Offer, JS seeks primary parenting. He was not successful at trial on primary parenting time. This was a significant issue. He was not successful on his offer to divide matrimonial property.

Under his offer, JD would receive $53,200.00. My judgment granted her approximately $91,000.00. While his offer for spousal support was more generous that his position at trial, deducting payments he made prior to trial, his offer for ongoing spousal support from January 1, 2023 on was slightly less than the award at trial. [ 12 ] The last remaining issue is whether, notwithstanding my conclusion that JS did not achieve substantial success, JD engaged in misconduct that calls for a cost award against her.

JS alleges that JD made allegations against JS and his counsel for taking her medical records, doctoring Blue Cross documents, and improperly contacting the case management justice and Dr. Martfeld. She also increased the costs of the litigation by changing counsel on three occasions, failing to attend questioning on three occasions, and failing to attend

trial. She sought and was denied various expenses. [ 13 ] I am not persuaded that JD engaged in the type of misconduct that justifies an award of costs against her. Seeking reimbursement for expenses that the court concludes are not substantiated is a basis to deny the claim but is not litigation misconduct. I have no information regarding why JD changed counsel or how this increased JS’s expenses. While JD did not accept the truth of certain documents JS put forward, this is not the type of misconduct that justifies an award of costs.

Although there were allegations that JS took medical records from JD and allegations of improper communications that JD was not a party to, I indicated to the parties at the outset that I was not deciding these issues. Accordingly, little time was spent at trial on this. JS was not put to any expense in defending these allegations. With respect to JD’s nonappearance, I have no information on the three occasions she did not attend questioning or what thrown away costs resulted from that. Regarding her failure to attend at trial, there were times when she was not able to attend for medical reasons.

This did unfortunately extend the number of trial days. However, I am satisfied that it was not an intentional nonattendance but was due to medical reasons. She made all reasonable efforts to attend, including booking a hotel downtown and hiring an assistant. She provided notice where possible of her inability to attend. Further, JS provided no information on what additional costs he incurred because we did not sit every day all day. [ 14 ] In

summary, there was considerable animosity between the parties and a high level of distrust. This led to conduct by both parties during the trial that I view as unfortunate. While JD’s accusations of impropriety were unfortunate conduct, JS’s arguing for primary parenting in the face of Dr. Martfeld’s clear recommendations and based on what was clearly an oversight by her in trying to work out a

schedule to accommodate his work shifts was also unfortunate. [ 15 ] In my view, the conduct of both parties while unfortunate, does not rise to the level of misconduct justifying a cost award. V. Conclusion [ 16 ] I am satisfied that neither party was substantially successful at trial. There was mixed success. JS’s Formal Offer to Settle was not more generous that the outcome at trial. Accordingly, except for Dr. Martfeld’s costs, I conclude that each party is responsible for their own costs. [ 17 ] Dr.

Martfeld’s fees for preparing the PN8 Report are $12,500.00 and her fees for testifying at trial are $1,500.00. JS paid these fees. Dr. Martfeld’s evidence was helpful to the court in resolving the parenting issues. It is appropriate for both parties to share her fees equally. Accordingly, JD shall reimburse JS $7,000.00 for Dr. Martfeld’s expenses. Dated at Edmonton, Alberta this 8 th day of May, 2023. Susan L. Bercov J.C.K.B.A. Appearances: Jim Scott Scott Law for the Plaintiff JD Self-Represented Litigant For the Defendant