MacLachlan v Perrault-Graham, 2023 ABCJ 95

In the Alberta Court of Justice Citation: MacLachlan v Perrault-Graham, 2023 ABCJ 95 Date: 20230420 Docket: FF021002868 Registry: Grande Prairie Between: Michelle Heather MacLachlan Applicant - and - Colleen Devera Perrault-Graham, Michael Louis Graham, Cathy Jane Alexy and Kayla Glenn MacLachlan Respondents Decision of the Honourable Ju stice J. K. Sihra Introduction [ 1 ] This is a ruling as to costs with respect to two consolidated Family Court applications.

The Parties [ 2 ] The child who is the subject of the applications is named Hailey and is presently age 14 (“the Child”). [ 3 ] Kayla Glenn MacLachlan is the Child’s biological mother. [ 4 ] Michelle Heather MacLachlan is Kayla’s sister, so therefore, Hailey’s maternal aunt. She is now the Child’s sole guardian. [ 5 ] Colleen Devera Perrault-Graham is the mother of Kayla and Michelle, so therefore, Hailey’s maternal grandmother. She was a Court-appointed guardian of Hailey. [ 6 ] Michael Louis Graham is Colleen’s partner.

He was a Court-appointed guardian of Hailey. [ 7 ] Cathy Jane Alexy is the mother of a man who was involved with Kayla in the past, and so therefore can be called the Child’s paternal step-grandmother. She also was a Court-appointed guardian of Hailey. [ 8 ] For ease of reference in this decision,

1. Kayla Glenn MacLachlan shall be referred to as “the mother”. 2. Michelle Heather MacLachlan shall be referred to as “the aunt”. 3. Ms. Perrault-Graham and Mr. Graham shall be collectively referred to as “the grandparents”. The Law on Costs [ 9 ] Sinclair C.J.Q.B. in McCarthy v Calgary Roman Catholic Separate School District No. 1 , 1980 CarswellAlta 254 (Alta. Q.B.) observed at para 3 : 3 As a general rule, costs may be said to fall into three categories: 1. Party-and-party costs — to provide partial indemnity for costs the successful party must pay his own solicitor. 2.

Solicitor and client — this basis is intended, so far as is consistent with fairness, to provide complete indemnity to the party to whom they are awarded as to costs essential to and arising within the four corners of the litigation. 3.

Solicitor and his client — the costs a solicitor can tax against a resisting client; the taxation between a solicitor and his client resolves itself into an assessment on the quantum meruit basis, into which all factors essential to fair play and justice enter. [ 10 ] In Trinity Christian School Association v Schienbein , 2021 ABQB 218 at paras 95 to 97 , the Court commented on the quantum of appropriate costs: 95 I agree with Respondents' counsel that, as confirmed by the foundational rules, costs must be proportional - in this case, both to the identified features of the Respondents' conduct and to the overall nature of the litigation.

See rule 1.2(4) and Goldstick Estates at para 31 and Hryniak v Mauldin 2014 SCC 7 , Karakatsanis J at paras 29 and 31-33. 96 Further, in my view, access to justice considerations play a role in the assessment of costs. (These considerations are expressly mentioned in rule 10.32 , which does not apply in the present circumstances.) Costs should not be so small that they have no deterrent or incentive effect or provide no real support to a successful litigant, but costs should not be so large that their threat deters legitimate litigation.

Thus Justice Fruman, as she then was, wrote in LSI Logic Corporation of Canada, Inc v Logani 2001 ABQB 968 at para 5 that "[o]n the one hand it is unfair to require a successful party whose conduct is not blameworthy to bear any costs incurred in prosecuting or defending the action; on the other hand, citizens will be hesitant to assert valid legal rights or even defend an action if an unsuccessful party is required to bear all the costs." See also Weatherford at para 12(CA).

The costs system should not run counter to "timely and affordable access to the civil justice system:" Hryniak v Mauldin at para 2 . 97 These considerations apply respecting party-party costs awards... [ 11 ] In Goldstick Estates (Re) , 2019 ABCA 508 , the Court of Appeal at para 31 confirmed that cost awards should always be proportional to the interest involved. [ 12 ] Although the Tariff of Recoverable Costs for Provincial Court, Civil came into effect on January 1, 2019 along with Practice Note 2, a ccording to s. 37.1 of the Provincial Court Act , subject to regulations, the Court may at any time and on any conditions that it considers appropriate, award costs. [ 13 ] While the Alberta Rules of Court govern practice and procedure in the Court of King’s Bench of Alberta, they do provide useful guidance to this Court as well.

As per Rule 10.33, a Court in granting costs may consider a number of things including the degree of success of each party, the complexity of the action, and the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action. Court Applications [ 14 ] On August 6, 2021, the grandparents applied to Vary a Parenting Order of November 19, 2019 which granted Ms. Alexy primary day-to-day care of the Child. What triggered the application is that the Child, instead of returning to Ms.

Alexy at Sylvan Lake, Alberta, wished to remain with the grandparents, with whom the aunt was also residing at that time, at Hines Creek, Alberta. [ 15 ] On September 29, 2022, the aunt applied for guardianship and a Parenting Order with respect to the Child, and termination of the guardianship of all existing guardians. The aunt proposed to establish her own household with the Child. The two sets of Court applications were eventually consolidated. [ 16 ] The contest was between the grandparents and Ms. Alexy initially, and then between the aunt and Ms. Alexy.

The aunt supported the application of the grandparents and vice versa. The mother, although served, did not appear for any of the Court dates and has not played a meaningful role in the Child’s life for some time due to personal issues. Outcome [ 17 ] Ultimately, during a Judicial Dispute Resolution (J.D.R.), Ms. Alexy consented to the aunt being granted guardianship and residence of the Child. Later, after a hotly disputed half-day hearing, the guardianship of Ms. Alexy was terminated. The grandparents

were amenable to the Child residing with the aunt and did not oppose their guardianship being terminated if Ms. Alexy’s was terminated as well. Position as to Costs [ 18 ] At the conclusion of the matter, the parties submitted written submissions as to costs. Tendered together were the submissions of the aunt and Ms. Perrault-Graham (the latter who appeared in Court in her own right and as agent for Mr.

Graham, as their interests aligned). [ 19 ] Neither the grandparents nor the aunt provided written submissions on costs to the Court by the deadlines imposed (February 17 and 24 respectively) by the Court on February 2, 2023. Both sets of submissions were forwarded in an email sent by the aunt on February 28. [ 20 ] Given the outcome of the Court applications, Ms. Perrault-Graham sought reimbursement for her lost wages, and both she and the aunt wanted reimbursement for legal fees, and food and gas outlay for periodic personal Court attendances from out of town. [ 21 ] Ms.

Perrault-Graham provided a letter from her employer, a camp, advising that due to the nature of the business, if employees take days off, they are required to take the entire week off. The letter indicated that, with Ms. Perrault-Graham’s obligation to be in Court during the weeks of September 2 and November 3, 2022 and January 19, 2023, she was required to take the entire week off, resulting in a minimum loss of 210 hours at $22/hour (equaling $4,620). [ 22 ] Both the aunt and Ms.

Perrault-Graham also claimed for gas and food for Court attendances as follows: June 14, 2022 - $80 each for gas and $20 each for food September 2, 2022 - $80 each for gas and $20 each for food November 3, 2022 - $20 apiece for gas and food for aunt $80 for gas and $35 for food for Ms. Perrault-Graham January 19, 2023 - $20 apiece for gas and food for aunt $80 for gas and $35 for food for Ms. Perrault-Graham [ 23 ] A couple of the dates noted by the aunt and Ms. Perrault-Graham do not correspond to the Court dates of September 20, 2022 and November 1, 2022.

Also, personal attendances were not required except for the J.D.R. scheduled on January 19, 2023. [ 24 ] In any event, in addition to the above, the aunt seeks compensation for her lawyer fees of $1,500. Ms. Perrault-Graham claimed lawyer fees of $5,000. However, no documents were provided to substantiate the expenses requested other than the letter from employer. [ 25 ] It can be inferred that Mr. Graham makes no claim for costs other than that forwarded by his agent, Ms. Perrault-Graham. The mother made no claim for costs. [ 26 ] Relying on the Court of King’s Bench

Schedule C of costs, Ms. Alexy’s counsel, Ms. Erickson contends that her client is entitled to costs from the grandparents in the sum of $1,700 based on $340 per Court appearance for the five appearances where Ms. Alexy was alleged to be successful or where those Court appearances were required due to purported inaction of the grandparents. [ 27 ] Ms. Reiman was appointed as counsel for the Child through Legal Aid. Due to the nature of her role, Ms. Reiman did not take a position respecting costs per sé.

Court Appearances [ 28 ] As previously noted, on August 6, 2021, the grandparents applied to Court for a variation of Parenting Order. This was so that the Child could remain residing in their care as per the Child’s wishes. Only Ms. Alexy was noted as a Respondent at that point. [ 29 ] On August 17, 2021, an Interim Without Prejudice Parenting Order issued in favor of the grandparents, who had counsel at that point. Ms. Alexy was present during this Court application via telephone but was self-represented and was not called upon by the judge for submissions nor did she make any comments or representations.

Pursuant to the August 17 th Order, a Voice of the Child Report was ordered with equal sharing of the cost between the two sides of the litigation. No returnable Court date was scheduled. [ 30 ] The matter was next in Court on June 14, 2022, when Ms. Alexy having retained counsel, Ms. Erickson, had brought the matter into Court to address. Both Ms. Alexy and Ms. Erickson were present in Court. Also present was counsel for the Child, Ms. Reiman, who had been appointed by Legal Aid under the auspices of the August 17 th Order.

Neither the grandparents nor anyone on their behalf was present, notably their previous lawyer. Nothing of note transpired and the matter was simply put over to June 28 to speak to. [ 31 ] Also on June 14, 2022, Ms. Reiman issued a letter as to the Child’s views and preferences. According to that letter: 1. Hailey did not want any contact with Ms. Alexy and asserted that this was her position.

2. Hailey advised that any restriction on contact with Ms. Alexy had been at Hailey’s insistence and was not a position imposed on her by her current caregivers. 3. Hailey had maintained this position over the course of Ms. Reiman’s most recent Legal Aid appointment as her counsel. 4. Hailey further advised that she would not comply with any Court Order for parenting time or contact with Ms. Alexy at this juncture. [ 32 ] Ms.

Erickson argues for costs for the June 14 th Court appearance as it was purportedly necessitated by the grandparents’ failure to properly serve all parties prior to the August 17, 2021 Court application and because counsel for the Child had not provided an update report despite multiple requests from Ms. Erickson. [ 33 ] Regarding the service argument, a filed Affidavit of Service shows that Ms. Alexy was personally served with the original application on August 16, 2021.

Hence, she did indeed have notice of the application although there was not as much notice as statutorily required. [ 34 ] As for the need for other parties to be served, it is true that the mother, the only other guardian at the time, was evidently not served. However, she has not been significantly involved in the Child’s life for some time. Even when the mother was served with the aunt’s application later in the proceedings, she at no time appeared in Court or otherwise played a role in the within litigation. [ 35 ] Importantly, Ms. Alexy did, as noted, attend Court on August 17, albeit by telephone.

Although the judge may have been remiss on that date in not explicitly garnering Ms. Alexy’s position or response to the application, Ms. Alexy notably maintained her silence throughout. It was thus not altogether unreasonable for the judge to infer that no issue was being taken by Ms. Alexy with what was being said and done. [ 36 ] Another consideration is that nothing was done in Court directly by Ms. Alexy until about 10 months later. This also suggests that Ms. Alexy took no overt issue with the August 17, 2021 Order, or she was resigned to same. As well, after the Order issued, at no time did Ms.

Alexy take the position that it ought to be vacated, or that the Child ought to be returned to her immediately or that the requirement for a Voice of Child report should be waived. In fact, Ms. Alexy instead pressed for the early completion of said report although it appeared that the other side, who ironically had asked for it, had subsided in their desire to have it undertaken. [ 37 ] As to any purported delay on Ms. Reiman’s

part in providing an initial report on the Child’s position, it is not clear when exactly this lawyer was appointed, or other circumstances known which might account for elapsed time. Hence, the Court cannot gauge whether counsel for the Child took an inordinate length of time to prepare a report or letter summarizing the Child’s position. [ 38 ] However, Ms. Erickson’s argument about Ms. Reiman failing to provide a report on a timely basis is somewhat incongruous. Even after Ms. Reiman provided two clear letters about the Child’s position, Ms.

Alexy doggedly resisted the opposing applications, thereby essentially disregarding the Child’s voice. Hence, it is doubtful that Ms. Alexy would have subsided earlier despite a letter from Ms. Reiman at the outset. Based on the foregoing, Ms. Alexy is not entitled to costs for the June 14 th Court appearance. [ 39 ] On June 28, 2022, a Court Order issued whereunder Ms. Erickson was to look into the costs for obtaining the Voice of Child Report, and Ms. Reiman was to attempt to determine the reasons why the Child no longer wished to reside with or have contact with Ms. Alexy. On June 28 th , Ms. Erickson, Ms.

Reiman and Ms. Perrault-Graham were present in Court. The matter was put over to July 19 th . [ 40 ] Ms. Erickson argues that Ms. Alexy was largely successful at the June 28 th Court appearance and ought to be entitled to costs for it. However, the “success” was a spurring-on by Ms. Alexy of ultimately doomed litigation. She was unwilling to accept what the teenage Child was clearly conveying as per the June 14 th letter from Ms. Reiman. Ms.

Alexy’s unilateral quest for more information from counsel for the Child was facilitated by the June 28 th Court Order. [ 41 ] Given the ultimate outcome of the matters, any success that can be ascribed to Ms. Alexy for the June 28 th Court appearance is largely illusory. Awarding costs to her would be an instance of “losing sight of the forest for the trees”. Therefore, Ms. Alexy is not entitled to costs for the June 28 th Court appearance. [ 42 ] On the July 19 th Court date, Ms. Erickson and Ms. Reiman were present. The only layperson present was Ms. Perrault- Graham, by telephone. Justice S.

Hinkley directed that the person who was to prepare the professional report was to be identified, and the Child was to attend an intake session with same, with the cost to be shared equally between the two sides. The matter was put over to September 20 th . [ 43 ] On the issue of costs for the July 19 th Court appearance, it is not clear if Ms. Erickson, as contemplated by the June 28 Order, ever did look into the costs of a Voice of Child Report.

If she had, it is unknown why the July 19 th Order would not have named the party or parties canvassed, as that might have identified or narrowed down who was to prepare the report. [ 44 ] In any event, once again, the July 19 th Court appearance entailed nothing more than accommodating Ms. Alexy’s wish to determine what was behind the Child’s desire to have no contact with her. Yet, the June 28 th Order already had tasked Ms. Reiman to explore this. Therefore, Ms. Alexy is not entitled to costs for the July 19 th Court appearance. [ 45 ] On September 2, 2022, Ms.

Reiman issued another letter as to the Child’s views and preferences. The purpose of Ms. Reiman’s further contact with Hailey was with the goal of ascertaining the reasons for the Child’s views. Ms. Reiman’s letter summarizes a number of specific grievances and incidents of concern to the Child during the time she was in the care of Ms. Alexy, including the latter’s son’s attempted suicide while inebriated and when the Child was home. The letter states:

1. Hailey remained steadfast in her position as previously indicated to the Court. 2. Hailey wanted the guardianship of Ms. Alexy to end. 3. Hailey was tired and wanted to end the Court proceedings and contact with Ms. Alexy altogether. 4. Hailey advised that since she had had no contact with Ms. Alexy, things had been “all better” and that Hailey was happier. [ 46 ] At the September 20 th Court date, in attendance were Ms. Erickson, Ms. Reiman, Ms. Perrault-Graham, and the aunt.

The latter advised that, in furtherance of Hailey’s wishes, she was prepared to file an application for guardianship and for termination of Ms. Alexy’s guardianship. An Order issued on September 20 th whereunder a deadline was set for the filing of said application. The matter was put over to November 1, 2022 to speak to. [ 47 ] Ms. Erickson is seeking costs for the September 20 th Court appearance on the grounds that, as noted in the Order, it was a wasted appearance as the grandparents had taken no action and thus the professional report was not done.

However, even if such report had been available on that date, given the aunt’s submissions to the Court, it is highly likely that the matter would have been adjourned regardless. [ 48 ] Moreover, Ms. Alexy even upon receiving the report dated November 3, 2022, still did not resile by tendering consent to the Court applications of the aunt. Hence, there is no reason to believe that even if the report had been completed by September 20 th , Ms. Alexy would have acceded to the Child’s wishes. Therefore, Ms.

Alexy is not entitled to costs for the September 20 th Court appearance. [ 49 ] On September 29, 2022, the aunt proceeded to file for guardianship, termination of the guardianship of others, and a parenting Order. As previously mentioned, the aunt had been residing with the grandparents and the Child, but the aunt intended to assume independent housing with the Child. [ 50 ] Both the grandparents and the aunt’s applications were before the Court on November 1, 2022. On that date, in attendance were Ms. Erickson, Ms. Reiman, Ms. Alexy, Ms. Perrault-Graham, and the aunt.

The aunt’s Court applications were consolidated with the grandparents’ application. The report from the professional was not completed yet. The matter was put over for a J.D.R on January 19, 2023, which, if proving unsuccessful, would transform into a Pre-Trial Conference. [ 51 ] On November 3, 2022, ARCH Psychological Services provided the long-awaited report in the form of a letter. The letter states, “Hailey shared that she was unsure why she was meeting with this writer as she felt that the Judge had already heard her voice in the matter.

Furthermore, Hailey stated that her decision to remain where she currently resides has not changed nor is she being coerced to say that she would like to stay where she is.” [ 52 ] At the J.D.R. on January 19 th , the aunt was present and had retained counsel, Mr. Bird. Ms. Alexy was absent due to illness, but Ms. Erickson was present, as was Ms. Perrault-Graham and Ms. Reiman. [ 53 ] During the J.D.R., three consent Orders were generated. They were not presented to the presiding judge as a fait accompli at the outset. The fact that the aunt had retained counsel, and that Ms.

Reiman, as per her costs letter to the Court dated February 3, 2023, billed a further $911.55 between the psychological report date and the J.D.R. date, point to the conclusion that the other parties had no advance warning of Ms. Alexy’s softening of position, and presumably therefore had to prepare for the J.D.R. [ 54 ] In the first consent Order, the aunt was appointed as guardian of the Child. The second consent Order granted the aunt primary residence. The third consent Order was procedural and set a half-day hearing on February 2, 2023 to address who should remain guardians in addition to the aunt.

The hearing was to entail oral argument based only on filed Affidavit evidence. The setting of a hearing date reveals that, even after Ms. Reiman’s two letters and the psychological report that collectively gave voice to Hailey’s unwavering position, Ms. Alexy remained undeterred in wanting to play a role in decision-making for the Child. [ 55 ] On February 2, 2023, the half-day contested hearing proceeded. The Child’s palpable frustration at what she perceived as not being heard to-date was evident in the submissions made on her behalf by Ms. Reiman.

After vigorous submissions back and forth over the guardianship of Ms. Alexy, the Court ultimately terminated her guardianship. The termination of the guardianship of the grandparents and the mother was not a disputed matter. Conclusion [ 56 ] In the end result, the Court must conclude that Ms. Alexy clung to an unviable position and thus protracted the within litigation.

Her opposition to the Court applications was not reasonable given the length of time over which she maintained it, the Child’s age, the fact the Child had repeatedly conveyed her wishes in no uncertain terms to both her counsel and a psychologist, and she had not wavered in her views. [ 57 ] Ms. Reiman’s September 2 nd letter went into far greater detail than the psychologist’s report. Ms. Reiman has had prior dealings with the Child on previous Court applications. Hence, it cannot be said that the Child needed time to “warm up” to Ms. Reiman or develop a rapport with her. As such, Ms.

Alexy’s refusal to accept the Child’s position at face value as stated in Ms. Reiman’s letters was all the more untenable. Although it is true that a child’s wishes in these types of Court matters are not necessarily determinative, Hailey made her position crystal clear from the beginning that she essentially wanted Ms. Alexy, who is not a blood relation, out of her life. Further, at no time did Hailey vacillate from her stance. Also, her age commanded more weight be given to her views than if she were younger.

Ruling [ 58 ] Clearly, there is nothing in the circumstances of this mater that would call for the award of solicitor-client costs or solicitor- and-own-client costs. As per the norm, party-and-party costs shall be awarded. [ 59 ] However, applying either the Provincial Court tariff or the Court of King’s Bench

Schedule C to discrete Court appearances herein yields a dissonant result. While it is true that on the whole, the Court appearances on June 28 and July 19, 2022 were in Ms. Alexy’s favor in terms of moving forward with a professional report, for the reasons discussed, it would be anomalous for the Court to award costs to her.

The Court appearances in question merely propelled the litigation in an ultimately futile campaign which bore the hallmark of failure early on. [ 60 ] It is true that the aunt and grandparents, although successful in this litigation, forwarded their costs submissions past the deadlines imposed by Court Order. Some latitude ought to be accorded to self-represented parties, however. Perhaps also due to their lack of legal representation at the end, the aunt’s and grandparents’ claims for lost wages, gas and food were deficient as they lacked supporting documentation.

However, again the Court is prepared to overlook this shortcoming, this time because it is inconsequential as dollar per dollar reimbursement is not applicable. [ 61 ] Although the legal fees purportedly billed to the aunt and grandparents were also not supported by statements of account or the like, the amounts claimed are in the range of what is to be expected in these matters.

Furthermore, due to hiring counsel, even on a limited basis, the aunt and grandparents are still going to be quite significantly “in the red” even after costs are awarded. [ 62 ] In the end result, a “big picture” approach to costs appears to be most fair in this matter. Although not correlated to any specific amount, this approach does still reflect proportionate success. Having considered the totality of circumstances, the Court rules that Ms. Alexy is liable for costs as follows: 1. Nothing Further for the Psychologist’s Report a. ARCH Psychological issued a $400 bill on September 23, 2022.

As per the August 17, 2021 and July 19, 2022 Orders calling for equal sharing, the grandparents paid $200 of that bill and Ms. Alexy paid the other $200. This shall remain undisturbed as it was the grandparents themselves who asked for a Voice of the Child report at the commencement of this matter, and they suggested an equal sharing via their then-counsel. 2. Part of Ms. Reiman’s Fees a. The sum of $925.50, representing one-half of Ms. Reiman’s accrued fees ($1,851) as of September 2, 2022, the date of her second letter as to the Child’s position. b. 100% of the remaining portion of Ms.

Reiman’s final Statement of Account to Legal Aid as these fees accumulated due to Ms. Alexy’s protracting the litigation. 3. $750 in costs to the grandparents as: a. They retained legal counsel for filing of their application and had legal representation for the August 17, 2021 Court appearance, and they were successful in obtaining interim residency of Hailey as per her wishes. b. Ms. Alexy did not give her consent to the aunt’s applications prior to the J.D.R., which occasioned the attendance of Ms. Perrault- Graham in her own right and as agent for Mr.

Graham, although the grandparents were self-represented at this point. The grandparents essentially consented to the aunt’s applications. c. A contested half-day hearing had to take place due to Ms. Alexy’s opposing the termination of her guardianship. Ms. Perrault- Graham was in attendance at the hearing, albeit by telephone. The grandparents were agreeable to their guardianship being terminated but only if Ms. Alexy’s was as well. This position was not unreasonable given that the Child’s position was inimical to Ms.

Alexy but there did not exist such animus between herself and the grandparents. 4. $1,500 in costs to the aunt as: a. She achieved 100% success on her applications. b. She retained counsel for the JDR from which it can be inferred that there was no advance notice that Ms. Alexy was going to capitulate as to guardianship and residency being granted to the aunt. c. Furthermore, even with the assistance of counsel, Ms. Alexy was unsuccessful in maintaining some, even a circumscribed, say in decision-making for Hailey after the contested half-day hearing as to termination of her guardianship.

Order [ 63 ] To avoid delay in counsel finalizing the Order, same will be prepared by the Courthouse and forwarded to the parties via email. Heard on the 2 nd day of February, 2023.

Dated at the City of Grande Prairie, Alberta this 20 th day of April, 2023. J. K. Sihra A Justice of the Alberta Court of Justice Appearances: Melissa J. Erickson for the Respondent Cathy Jane Alexy Natalia Reiman for the child Michelle MacLachlan self represented Colleen Perrault-Graham self represented Michael Graham self represented – non appearance Kayla MacLachlan self represented – non appearance