SUZANNE DENISE HEFFERNAN PETITIONER - v. -, 2023 SKKB 115

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 115 Date: 2023 06 07 Docket: DIV-SA-00792-2018 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: SUZANNE DENISE HEFFERNAN PETITIONER - and - JOSEPH PAUL HEFFERNAN RESPONDENT Appearances: Kirsten M. Hnatuk appearing for the petitioner Joseph P. Heffernan appearing on his own behalf ___________________________________________________________________________ FIAT ON COSTS GOEBEL J.

June 7, 2023 ___________________________________________________________________________ Overview : [ 1 ] In my judgment dated May 16, 2022, I granted leave to either party to request a costs hearing within 30 days failing which there would be no order as to costs. On June 14, 2022, the respondent father asked to speak to costs. By fiat dated June 17,

2022, I directed the local registrar to set a date and time for a costs hearing. I further directed as follows: [ 2 ] … The hearing shall be held at the courthouse. It is limited to one hour. The parties shall file materials in support of their position on costs as follows: a. At least 14 days prior to the hearing date, the respondent shall file any written materials upon which he relies in seeking an order for costs in addition to a draft bill of costs; and b.

At least 7 days prior to the hearing date, the petitioner shall file any written materials upon which she relies in addition to a draft bill of costs. [2] Since that date, I have issued a number of fiats on other issues. By fiat dated July 12, 2022, I directed that the costs relating to the conference call (and dispute respecting Hank’s passport and travel, division of summer holidays, and summer 2022) could be spoken to at the costs hearing. The remaining fiats were silent on costs. The Legal Framework: [ 3 ] The determination of costs in a family matter is discretionary.

That said, the discretion must be exercised judiciously and in keeping with the schematic provided by The Queen’s Bench Rules and the decided cases. [ 4 ] In family law matters, the starting point is Rule 15-96, which reads as follows: Costs 15-96

(1) Costs are in the discretion of the Court and, except as modified by this rule, the following provisions apply to the costs of a family law proceeding: (

a) Part 4, Division 4; (

b) Part 11.

(2) Subject to subrule (3), there is a presumption that a successful party is entitled to the costs of a family law proceeding or a step in a family law proceeding.

(3) A successful party who has behaved unreasonably or has acted in bad faith during a family law proceeding may be: (

a) deprived of all or part of the party’s own costs; or (

b) ordered to pay all or part of the unsuccessful party’s costs.

(4) In deciding whether a party has behaved reasonably or unreasonably or in bad faith, the Court may examine: (

a) the party’s behaviour in relation to the nature, importance and urgency of the issues from the time they arose; (

b) any conduct of the party that tended to lengthen unnecessarily the duration of the family law proceeding; (

c) whether any step in the family law proceeding was improper, vexatious or unnecessary; (

d) the party’s denial or refusal to admit anything that should have been admitted; (

e) whether the party made an offer to settle; (

f) the reasonableness of any offer to settle the party made; and (

g) any offer to settle that the party withdrew or failed to accept.

(5) If success in a family law proceeding or a step in a family law proceeding is divided, the Court may apportion costs as appropriate.

(6) The Court may order costs against a party if the party: (

a) fails to appear at a step in the family law proceeding; (

b) appears but is not properly prepared to deal with the issues at that step; or (

c) appears but has failed to make the disclosure required before that step.

(7) After each step in the family law proceeding, the judge who dealt with that step may, in a

summary manner: (

a) decide who, if anyone, is entitled to costs; (

b) set the amount of costs; and (

c) specify a date by which payment must be made.

(8) Offers to settle referred to in this rule do not include offers made during a pre-trial conference but do include:

(

a) offers made before the commencement of a family law proceeding; and (

b) offers made pursuant to

Part 4, Division 5. [ 5 ] Additional guidance respecting the court’s discretion in ordering costs is found in the general rules on costs as follows: Discretion of Court 11-1

(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to a proceeding or a step in a proceeding, and may make any direction or order respecting costs that it considers appropriate.

(2) In exercising its discretion as to costs, the Court may determine: (

a) by whom costs are to be paid, which may include a successful party; (

b) to whom costs are to be paid; (

c) the amount of costs; (

d) the date by which costs are to be paid; and (

e) the fund or estate or portion of the fund or estate out of which costs are to be paid.

(3) In awarding costs the Court may: (

a) fix all or part of the costs with or without reference to the Tariff; (

b) award a lump sum instead of or in addition to any assessed costs; (

c) award or refuse costs with respect to a particular issue or step in a proceeding; (

d) award assessed costs up to or from a particular step in a proceeding; (

e) award all or part of the costs to be assessed as a multiple or a proportion of any column of the Tariff; (

f) award costs to one or more parties on one scale, and to another party or other parties on the same or another scale; (

g) direct whether or not any costs are to be set off; and (

h) make any other order it considers appropriate.

(4) In exercising its discretion as to costs, the Court may consider: (

a) the result of the proceeding; (

b) the amounts claimed and the amounts recovered; (

c) the importance of the issues; (

d) the complexity of the proceedings; (

e) the apportionment of liability; (

f) any written offer to settle or any written offer to contribute; (

g) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding; (

h) a party’s denial of or refusal to admit anything that should have been admitted; (

i) whether any step in the proceeding was improper, vexatious or unnecessary; (

j) whether any step in the proceeding was taken through negligence, mistake or excessive caution; (

k) whether a party commenced separate proceedings for claims that should have been made in one proceeding or whether a party unnecessarily separated his or her defence from that of another party; and (

l) any other matter it considers relevant. [ 6 ] Pursuant to the Rules, a successful party is generally entitled to costs, although this is not absolute.

The jurisprudence recognizes that departure from this presumption may be warranted given the unique considerations in play in family law matters: see Ackerman v Ackerman , 2015 SKQB 113 at paras 34 to 36 , 473 Sask R 219 [ Ackerman ] ; K.R. v J.K. , 2018 SKCA 35 at paras 95 to 99 ; Werbicki v Werbicki , 2009 SKQB 373 , 73 RFL (6th) 378 ; Nunweiler v Nunweiler , 2021 SKQB 261 [ Nunweiler ] ; A.P. v J.P. , 2020 SKCA 134 , 48 RFL (8th) 298 [ A.P. ]; George v Penner , 2020 SKQB 99 at para 16 [ George ]; M.L.S. v N.E.D. , 2019 SKQB 26 at paras 46 to 53 , 19 RFL (8th) 316 [ M.L.S. ].

[7] In Peterson v Peterson, 2019 SKCA 76, 30 RFL (8th) 341 [Peterson], the Court of Appeal acknowledgedsome of the considerations that might impact an award of costs in a family law matter as follows: [89] One of the ordinary rules of costs is that a party who has been wholly successful should, in the absence of strong reasons to thecontrary, be entitled to an award of costs: Thomas v Lafleche Union Hospital Board, (SK CA), [1991] 5 WWR 209(Sask CA). This “rule” is embodied in the presumption contained in Rule 15-25(2).

In child custody cases, this presumption must beconsidered and applied with the best interests of the children in mind.

The presumption may be rebutted where there is evidence offinancial hardship or where an order of costs would otherwise be contrary to the best interests of the children: Ackerman v Ackerman,2015 SKQB 113 at paras 34–36, 473 Sask R 219; see also K.R. v J.K., 2018 SKCA 35. [8] More recently in A.P. the Court of Appeal reiterated financial hardship as a consideration in parenting mattersas follows: [55] An additional factor that is relevant to an award of costs in a child custody matter is the effect that such an award may have on aparent’s financial ability to properly care for a child and the consequent influence on the child’s best interests: George v Penner, 2020SKQB 99 at para 16; M.L.S. at paras 45–53; Werbicki v Werbicki, 2009 SKQB 373 at para 8, 342 Sask R 140; and Brill v Brill, 2010ABCA 358 at para 14, 87 RFL (6th) 254.

Positions advanced by each party: [9] As directed, both parties filed draft bills of costs relying on Column 1 of the current tariff. While the trial waslengthy, it was not legally complex. I agree that Column 1 is an appropriate starting point in this instance. [10] Their calculations are comparable.

The draft bill of costs filed by the father initially calculated costs at $27,000before tax while the draft bill of costs filed by the mother calculates costs and disbursements at $25,463. [11] The main issues in dispute relate to the proportion of success to be accorded to each party, whether either partyis entitled to costs for pre-trial applications and whether there are any special considerations, supported by evidence, that impact theanalysis, including financial hardship. [12] The father argues that when the court is considering the proportion of success at the trial, it must have regardfor the sincerity of the position he advanced on parenting issues and the “fact” that it was the mother’s actions and unreasonable positionon parenting that “forced” the trial to proceed.

He also alludes to numerous alleged interim indiscretions and vexatious actions on thepart of the mother that he feels should flavour the determination. In the event that the court deems that a costs award is payable by him,the father asks the court to consider the financial hardship that such an award would invoke upon him and its consequent impact on Hankgiven his obligation to pay support. [13] In response, the mother argues that she was wholly successful on the parenting issues at the trial, which was thefocus of the evidence and submissions over the 10-day trial.

She proposes that the bill of costs be reduced by 10% to account for thefather’s success on the issue of spousal support at the trial. Analysis: Pre-trial applications: [14] The father seeks costs relating to a number of pre-trial applications. Such was also a consideration in M.L.S.where I held as follows: [13] Generally, costs relating to an interlocutory application will follow the outcome of the application unless the chambers judgedirects that the issue of costs is “in the cause” or is otherwise to be determined by the trial judge.

This practice was applied by McIntyreJ. in Thompson v Thompson, 2008 SKQB 116, 328 Sask R 12, where, after reviewing the Rules, jurisprudence and authorities respectingcosts in interlocutory motions, he held as follows: [18] On the motion where costs were awarded to the respondent in a fixed amount he is entitled to those costs irrespective of the orderas to costs made after trial. On the motions where there was an order for costs in the cause they will be addressed in the order for costs tobe made, although it is noted they remain in the discretion of the court irrespective of the issue of success.

On those motions where itwas specifically ordered that there would be no order as to costs or the order was silent as to costs, no costs of such motions can beordered although the motions themselves are a matter which may be taken into account in the exercise of the court’s discretion as tocosts following the trial. [15] In this case, there were more than fifteen pre-trial court appearances respecting at least twelve applicationsseeking substantive interim relief and disclosure. In the bulk of the fiats, an order was made that no costs were payable.

In three fiats, acosts award was made and remains in full effect. One fiat relating to Christmas parenting time was silent on costs and another relating todisclosure left costs to be determined by the trial judge. The results appear mixed. In the circumstances, I am only prepared to includeone pre-trial application in the costs analysis.

Costs relating to the family property claim: [16] In their draft bills of costs, both parties included costs for steps relating to their respective family propertyclaims notwithstanding that a consent judgment was executed at the start of the trial resolving family property on a final basis. Thatconsent judgment makes no mention of costs. [17] In the circumstances, I am not prepared to include costs relating to the property claims resolved by consent atthe start of trial. Both parties were represented by counsel at that time and it is reasonable to expect that if they intended to speak to costs

relating to their respective property claims, the judgment would have identified same. Mixed Success: [18] Rule 15-96(5) provides for apportionment of costs in the event of mixed success. The degree of success enjoyedby family law litigants and the corresponding impact on a costs assessment was considered in Peterson; Antosh v Antosh, 2016 SKQB321; R.E.G. v T.W.J.G., 2011 SKQB 269, 6 RFL (7th) 400; Frank v Linn, 2013 SKQB 28, 412 Sask R 164 and George. [19] Here, both parties concede that there was mixed success at the trial although they do not agree on the proportionof same.

The mother says that if one considers the nature of the evidence elicited at the trial, the focus of which was on parenting andchild support, she was more successful than the father. She suggests that the success falls 90% to her and 10% to the father. [20] The father does not agree. He suggests that the parties achieved relatively equal success when one considerseach party’s starting position on parenting. In that regard, it is not disputed that at the outset of the trial, the mother advanced a verydifferent parenting

schedule than the one advanced during closing arguments. The father argues that the fact that the mother significantlyamended her position over the course of the trial did not prevent the trial from occurring – a relevant consideration in determining“success” for the purposes of costs. [21] He also asks the court to consider the mother’s stance in various applications brought prior to the trial, as well asafter the trial concluded but before the judgment was rendered. In these applications, the mother was seeking court orders that wouldhave significantly reduced the father’s parenting time. He says that by either measure, the parenting

schedule ordered in the judgment isgenerous. [22] With respect to child support, the father submits that while the wife’s claim for child support was granted, hewas never opposed to paying child support and has always fully complied with any child support orders. He queries as to why that issuehad to go to court at all. [23] The position advanced by the father has some merit.

Given the focus of early resolution in family justicegenerally, the stance taken by the mother prior to a trial cannot be ignored when defining “success”. [24] Ultimately, on balance the mother achieved greater success at the trial when one compares the positions andevidence advanced throughout the trial. I would characterize the balance at 70% for the mother and 30% for the father on the disputedissues.

Other considerations in parenting disputes: [25] While there are no “special rules” with respect to costs in parenting disputes (see Ackerman at para 29), thecourt’s discretion is broad enough to allow the court to consider and weigh whether the specific circumstances render an award of costsinappropriate or excessive.

In M.L.S., I held: [46] In addition to the considerations enumerated by Rule 11-1(4), there may be additional factors at play in a custody proceeding thatinform the determination of costs: Davidson v Reynolds, 2002 SKQB 103, [2002] 6 WWR 342 [Davidson], R.B.G. v P.M.S., 2008 SKQB387, 314 Sask R 4 [R.B.G.], Werbicki v Werbicki, 2009 SKQB 373, 342 Sask R 140 [Werbicki], Ackerman v Ackerman, 2015 SKQB113 at para 79, 473 Sask R 219 [Ackerman], and B.S.P. v C.M., 2018 SKQB 125 [B.S.P.]. [47] In Davidson, McIntyre J. adopted, with approval, a list of factors that are relevant to the consideration of costs in a custodymatter including the results of any court ordered assessment, the relative financial position of the parties to the extent that it may impactthe viability of the custody arrangement, improper conduct in the course of the proceedings or allegations advanced, and the concern thatparents ought not be dissuaded from putting forward their bona fide views with respect to the children’s best interests (para. 12 and 13). [48] The same factors were cited with approval in R.B.G., where the parties had a significant disparity in income.

In its analysis, thecourt referred to the decision of the British Columbia Court of Appeal in Gold v Gold (1993), (BC CA), 106 DLR(4th) 452 (BCCA) [Gold], where a list of factors were identified to assist the court in determining whether it might be appropriate todepart from the presumptive rule. Those factors included hardship, earning capacity, the purpose of the particular award, the conduct ofthe parties in the litigation and the importance of not upsetting the balance achieved by the award itself.

In R.B.G., the court found thatfinancial disparity between the parties was a relevant consideration, particularly where it impacts the viability of the custody order (para.38).

Very recently in Gordon v Nielson, 2018 SKQB 207, Wilkinson J. synthesizes the underlying rationale for this consideration asfollows (para. 256): … parents are deeply invested in their children’s well-being and should not be dissuaded from putting forward sincere views with respectto their best interests or left with burdensome costs that might substantially affect the viability of the parenting arrangements ordered bythe court. [49] The Gold case was also indirectly cited by Megaw J. in Ackerman, where he held as follows: 36 In S.D.W. v C.W.W., 2006 BCSC 162, 55 BCLR (4th) 101 Martinson J. provides helpful comments on the exercise of discretion infamily law cases when dealing with the issue of costs: 28 The discretion found in the usual rule is not unlimited; otherwise, the rule, supported by strong policy considerations, would becomemeaningless.

In Gold at [paragraph] 20, the Court of Appeal addressed the question of when the court should “order otherwise”. It is amatter of discretion to be exercised judicially. Strict guidelines and an exhaustive list of factors to consider would not be helpful. TheCourt provided a non-exhaustive list of factors: hardship, earning capacity, the purpose of the particular award, the conduct of the partiesin the litigation and the importance of not upsetting the balance achieved by the award itself.

29 While financial hardship is one factor to consider, that factor is insufficient on its own to depart from the usual rule that costs followthe event: Richter v. Richter (2004), 6 C.P.C. (6th) 181, 2004 BCSC 214 and Fulton [(2002), 2002 BCSC 1194 , 6 BCLR (4th)152]. Nor is sympathy a sound basis for departing from the usual rules: Robinson v. Lakner (1998), (BC CA), 159D.L.R. (4th) 191, 107 B.C.A.C. 64 and Fulton.

The onus is upon the person saying that the usual rule does not apply to persuade theCourt why it should depart from the usual rule. [50] In Werbicki, Dufour J. followed this rationale and held as follows: 8 In general litigation, the fact that costs may impoverish the unsuccessful party is seldom of consequence – you fought, you lost, youpay. I have the discretion, however, to depart from the general presumption for, as Barclay J. termed it, “good cause”. The financialsituation of the parties can be “good cause”: R.B.G. v. P.M.S., supra; Talarski v. Pool (1996), (SK KB), 142 Sask. R.77 (Q.B.); Gold v.

Gold (1994), (BC CA), 106 D.L.R. (4th) 452 (B.C. C.A.); H.(P.) v. H.(D.) (2000), (NL SC), 5 R.F.L. (5th) 333 (Nfld. U.F.C.). In custody matters, there is the best interests of the child to consider. The goal ofcustody proceedings is to identify that which is in the best interests of the child and fashion a judgment accordingly. The courts must bemindful not to allow a large costs award to have the practical effect of upsetting the balance the court sought to achieve.

It is generallynot in the best interests of the child to impoverish a parent who has split custody. [51] Similarly, in B.S.P., this Court recently held that an award of costs should not be so high as to deprive a parent of the ability toproperly care for a child at issue in the litigation. [52] This, however, does not mean that the presumption that the successful party is entitled to costs does not apply in custody matters,but rather whether that presumption has been rebutted due to other causes or considerations.

In K.R., the Court of Appeal emphasized thatthe starting point in assessing costs in custody matters remains the presumption articulated at Rule 15-25(2), although the presumptioncan be rebutted.

Each case must be decided on its own facts. [26] Moreover, in Nunweiler Smith J. recently found that any award of costs as against the unsuccessful parent in amobility dispute was inappropriate given, in part, that the mother’s decision to reject the father’s proposal and proceed to trial was asincere reflection of her desire to be an engaged parent and nothing more. [27] Here, there is no question that the “position” advanced by the father at the trial was a sincere reflection of whathe believed to be in the best interests of Hank.

It was also consistent with the recommendations made by the court-appointed custody andaccess assessor in her report and during her testimony. For that reason alone, it could not be deemed unreasonable. [28] Another consideration is financial hardship, particularly where there is concern that an award of costs mayimpact the parties’ ability to provide for a child. In this case the father argues that any costs award would result in financial hardship tohim.

That said, he did not tender any current income information, and any arguments claiming that he has been saddled with family debtring hollow given the final determination of that issue by consent at the outset of the trial. (The mother did not advance such an argumentnor did she file any financial information respecting the impact of the court proceeding on her financial viability.) [29] Assuming there have not been significant changes in their employment status or income since the trial judgmentwas rendered, I see no clear and obvious hardship that would justify a significant reduction in the award of costs payable.

Conclusion: [30] Having considered the legal framework, jurisprudence, the outcome of the trial, the positions advanced and thedraft bills of costs filed, I direct that costs be awarded to the mother in the fixed sum of $7,500 in addition to any awards of costs that thefather was previously ordered to pay that remain unpaid, and less any awards of costs that the mother was previously ordered to pay thatremain unpaid.

The net award shall be paid within 120 days from the date of this fiat. [31] For clarity, this award is inclusive of all disbursements and applicable taxes as well as costs relating to any post-trial applications (including conference calls) that have been determined to the date of this fiat. J. G.V. GOEBEL