CMB v AMB, 2022 ABKB 847

Court of King’s Bench of Alberta Citation: CMB v AMB, 2022 ABKB 847 Date: 20221215 Docket: 4803 184273 Registry: Edmonton Between: CMB Plaintiff - and - AMB Defendant _______________________________________________________ Costs Endorsement of the Honourable Justice M. J. Lema _______________________________________________________ A.

Introduction [ 1 ] This decision addresses costs of property-and-support and parenting trials. [ 2 ] I conclude that the parties shall bear their own costs of the first trial (with success evenly divided) and that the mother must pay costs of $25,000 (plus certain disbursements) to the father for the second trial. The driving factor is her proved-to-be-unfounded allegations of sexual abuse of one of the couple’s children by the father. B. Background

[ 3 ] Costs of the first trial ( 2022 ABQB 277 and supplementary reasons at 2022 ABQB 453 ) were deferred pending the outcome of the second ( 2022 ABQB 528 and supplementary reasons at 2022 ABQB 916 ). C.

Analysis Property-and-support trial [ 4 ] That trial addressed these issues, with the successful or largely successful party indicated: • whether the father’s parenting over a particular period reached shared-parenting level, in contrast to the otherwise prevailing primary parenting by the mother [ mother ]; • whether income should be imputed to the father [ father ]; • whether an adverse income should be drawn against the father for not attending certain questioning [ father ]; • whether retroactive child support was payable over three distinct periods [ father ]; • the appropriate amount of ongoing child support [ even ] • the characterization (gifts or loans) of certain payments to the mother by one of her family members [ mother ]; • whether the father should be credited for asserted matrimonial-debt payments [ mother ]; • whether the mother was entitled to spousal support [ mother ] and, if so, whether retroactive support was payable over two distinct periods [ father ] and, in any case, the appropriate amount of ongoing support [ mother ], plus how to factor in (if at all) child tax benefits and

section 7 expenses) [ even ]; and • on the property front: o whether the parties had claims in each other’s residences [ even ]; o entitlement to two vehicles [ even ]; and o entitlement to certain keepsakes [ father ]. [ 5 ] Overall the success was evenly divided, with neither party being largely or even mostly successful. [ 6 ] For this trial, the appropriate outcome is that the parties bear their own costs.

Parenting trial [ 7 ] On this trial’s two core issues – whether the father had sexually abused the couple’s youngest child and whether his parenting should be at the shared-parenting level (versus supervised) – the father was successful on both. [ 8 ] He was also successful on the same adverse-inference point as in the first trial. [ 9 ] As the successful party, is the self-represented father entitled to costs? And, if so, on what scale? Fact of self-representation [ 10 ] A threshold issue is the impact of the father’s self-representing status. [ 11 ] Rule 10.31 provides as follows (in part):

(5) In appropriate circumstances, the Court may order, in a costs award, payment to a self-represented litigant of an amount or part of an amount equivalent to the fees specified in

Schedule C. [ 12 ] In Dechant v Law Society of Alberta , 2001 ABCA 81 , which predates that rule, the Court of Appeal identified a number of relevant costs factors in this context: That balancing of equities involved in crafting a just costs award is a delicate exercise. When determining an appropriate costs award for a successful unrepresented litigant, courts should consider many factors , including the lost opportunities of the litigant as a result of self-representation . For the sake of expediency, proof of the exact value of that lost opportunity is not required (or we would be into trials about costs).

Nonetheless, whether a person has lost time from work to represent themselves is a relevant factor to consider. If an unrepresented litigant was not otherwise employed, the fee portion of costs attributable to lost opportunity may not exist or, at a minimum, would be significantly less than a person who has suffered a loss of income due to employment absences . We reject the argument that

Schedule C is an assessment of what particular work is worth and thus should apply regardless of whether any cost was in fact incurred. In our view, costs under the Rules are still primarily concerned with reimbursement for costs expended and a partial indemnification for legal fees, having regard to value for work . We recognize, however, that costs may

include lost opportunity costs of the unrepresented litigant. That said, unrepresented and represented litigants are not in the same position.

Schedule C does not provide an automatic basis for determining costs for unrepresented litigants and may also frequently not be appropriate for represented litigants. When awarding costs above disbursements for the unrepresented litigant, the court must look at the particular facts of each case. Was the matter complicated ? Was the work performed of good quality ? Did the self-representation result in unnecessary delays ? Did the litigant take up an unreasonable amount of time of opposing parties or the courts? Did the litigant lose time from work ?

In general terms, what is the lost opportunity of the unrepresented litigants? What would they have earned if not required to prepare their own case ? Did the other side take advantage of the fact that they were facing unrepresented litigants by taking frivolous and unnecessary steps to thwart that litigant? Did the other side refuse to entertain reasonable requests to discuss settlement ? What is an appropriate amount for the issues involved ?

All of the factors set out in r. 601(1) which are relevant in a particular case should be considered when selecting the appropriate costs award. [paras 19-21] [emphasis added] [ 13 ] In Morrison v Rod Pantony Professional Corporation , 2008 ABCA 261 , the Court of Appeal approved extra costs for an exceeded settlement offer made by a self-represented person: … Mr. Pantony. Arguably the appellant was essentially self-represented. Whether a self-represented litigant should receive costs is a matter of discretion: Huet v. Lynch , 2001 ABCA 37 , 91 Alta. L.R. (3d) 1.

To the extent that costs are intended as an indemnity, they should not be awarded to a self-represented litigant, although sometimes a reduced award is made to reflect the opportunity costs of the litigation. However, the efficacy of the settlement rules would be undermined if a self-represented litigant could never effectively have resort to them. If it had been represented by external counsel, the appellant would have been entitled to double costs .

In the particular circumstances of this case, it is appropriate to award the appellant two-thirds of the costs to the date of the offer, and one and one third times the fees portion of the normal taxable costs incurred after service of the offer . … [para 7] [emphasis added] [ 14 ] In Lux v Lux , 2019 ABCA 454 , the Court of Appeal limited costs to the when-represented segment of the trial, plus disbursements: The appellant achieved some success on appeal.

She was self-represented through much of the appeal process, and as such would only have a claim for costs for the oral argument, when she was represented by counsel .

The appellant is awarded assessed fees of $500 for preparation, plus $1,000 for oral argument, plus GST, as well as disbursements of $600 for the filing fee, plus the disbursement for preparation of the transcripts and the appeal record, plus $100 for other disbursements, plus GST. [para 32] [emphasis added] [ 15 ] In Prediger v Santoro , 2016 ABCA 11 , after noting the default rule (successful party entitled to costs) and the “general principle” that costs are per

Schedule C, the Court of Appeal awarded costs, emphasizing the volume of materials in the case and “loss of income” factor (not recognized there): … As the respondent did not incur legal costs, the Court has discretion to award costs to a self-represented litigant. In our view, given the volume of material that Mr. Prediger was required to respond to, this is an appropriate case in which to direct that the respondent receive costs. Courts do not generally award costs which compensate parties for lost income while preparing for and attending an appeal, and we see no reason to do so in this case . In the result we direct that the respondent shall have costs based upon

Schedule C, Column 1 …. [ 16 ] In AR v JU , 2021 ABCA 337 , the same Court reiterated the general “no costs unless one or more policy factors engaged” approach : The primary purpose of a costs award is to partly indemnify the successful party for the legal costs of the litigation : British Columbia (Minister of Forests) v Okanagan Indian Band , 2003 SCC 71 at paras. 21 , 26, [2003] 3 SCR 371.

Costs awards also achieve other purposes: they can be used to encourage settlement, or to prevent frivolous, vexatious or harassing litigation, and they can also be used to encourage economy and efficiency during litigation: Hogarth v Rocky Mountain Slate Inc , 2013 ABCA 116 at para 8 , [2013] AJ No 280. Since a self-represented litigant does not incur any legal fees, the ordinary objective of indemnification is not achieved. Therefore, a self-represented litigant should generally not receive costs unless that would serve one of the policy reasons for which costs awards are made : Hogarth at paras 9 .

Disbursements for the appeal are however recoverable: Hill v Ilnicki , 2020 ABCA 327 at para 14 , [2020] AJ No 968 (QL). We see no reason to depart from the usual rule that self represented litigants do not receive costs aside from reasonable disbursements .

As there was mixed success, both parties bear their own costs including disbursements. [paras 104 and 105] [emphasis added] [ 17 ] Here is the key cited passage (in part) from Hogarth v Rocky Mountain Slate Inc , identifying potentially relevant policy factors : Simonson argues that he should receive costs of the trial itself, even though he was self-represented. The presumption under the old rules was that self represented parties were not entitled to costs.

However, the new rules contemplate that in appropriate circumstances costs can be awarded: 10.31(5) In appropriate circumstances, the Court may order, in a costs award, payment to a self-represented litigant of an amount or part of an amount equivalent to the fees specified in

Schedule C . The primary purpose of a costs award is to partly indemnify the successful party for the costs of the litigation: British Columbia (Minister of Forests) v Okanagan Indian Band , 2003 SCC 71 at paras. 21 , 26, [2003] 3 SCR 371. Since a self-represented litigant does not incur any legal fees, the ordinary objective of indemnification is not achieved. Costs awards do, however, achieve other purposes : they can be used to encourage settlement , or to prevent frivolous, vexatious or harassing litigation , and they can also be used to encourage economy and efficiency during litigation .

Rule 10.31(5) ensures that those purposes of a costs award can be achieved even where a party is self-represented. [para 8] [emphasis added]

[ 18 ] In awarding costs to self-represented respondents in LaTrace v Warkentin Building Movers Virden Inc , 2021 ABCA 377 , the Court of Appeal emphasized the “economy or efficiency” factor, the value added by the self-represented parties, and non-application of

Schedule C : … This was an appeal on a discrete question of law decided summarily, before a full trial of all of the other issues commencing on November 1, 2021. While there was nothing improper in Warkentin appealing the

summary trial decision on the applicability of the Consumer Protection Act to this Court, that choice did not promote economy or efficiency in this lawsuit . Further, unlike in Hogarth at para 10 , the LaTraces did demonstrate special skill during the appeal by briefing the law and arguing complex issues about the proper

interpretation of the Consumer Protection Act . Though self-represented, they added value to the appeal comparable to what one would expect from a qualified lawyer. The LaTraces should have some costs of the appeal. The issue is how much. It is not appropriate to quantify the costs award by reference to the fee items for the appeal steps in

Schedule C. Those amounts are meant to provide partial indemnification for legal fees and the LaTraces have not incurred any legal fees (apart from the disbursement). Using

Schedule C would rest on a fiction : Dechant at para 17 . Nor is it appropriate to apply a multiplier to any notional costs award to reflect litigation misconduct because there was nothing improper about Warkentin’s conduct of the appeal. In the result, we conclude that a reasonable costs award, taking into account the policy considerations for awarding it, is a total of $8000 payable immediately. That amount includes the disbursement for the lawyer’s bill plus GST ($2,508.19).

There will be no separate costs award for this application to settle appeal costs. [paras 6 and 7] [emphasis added] [ 19 ] In Edmonton (Police Service) v Alberta (Information and Privacy Commissioner) , 2019 ABQB 864 , Graesser J. provided the following review and synopsis , building (in part) on Hogarth and Dechant : It is interesting that while Dechant references lost opportunity costs, Alberta Courts have not followed along the Ontario lines of compensating self-represented litigants in that fashion.

One of the most significant cases in Alberta post-Rule changes is Park Avenue Flooring Inc v EllisDon Construction Services Inc , 2016 ABQB 332 . There, Jeffery J considered costs in favour of a self-represented litigant after a six-week trial in which the self- represented litigant was substantially successful. The plaintiff was awarded nearly $900,000 after a 127-day trial. EllisDon had been ordered to pay $150,000 at trial to Park Avenue Flooring for “failure to be reasonable and cooperate”.

Park Avenue Flooring sought costs of over $3,000,000 based on the time spent by its director in running the litigation and other expenses incurred. After a thorough analysis of the principles discussed in Hogarth and Dechant , Jeffery J concluded that costs should be based mainly on a

Schedule C analysis . That resulted in fees of $300,000 being awarded to Park Avenue Flooring. … Koopmans v Joseph , 2014 ABQB 721 followed along similar lines. There, the self-represented plaintiff was awarded $5000 in costs for conducting his own trial as well as $5000 for successfully appealing the trial decision. While he had represented himself in court, he had incurred significant legal costs in obtaining legal advice before the trial and the appeal. Those costs were factored in to the overall award by Greckol J (as she then was). In

summary, I note that in Alberta, nothing has really changed since my decision in LL v GB , 2009 ABQB 322 , which was decided before the 2010 Rules of Court changes. The approach has not changed with the new Rules of Court, and the Alberta courts have not followed along the Ontario or British Columbia lines. I said in LL at paragraph 67: I think the following principles are applicable to the award of costs in favour of a successful self-represented litigant: 1. There is no automatic rule entitling a self-represented litigant to costs .

While there is a presumption in favour of awarding costs on a party and party basis to a successful represented litigant, a self-represented litigant bears a stronger onus of establishing an entitlement to costs; 2. In determining entitlement, the Court should have regard to the factors set out in Dechant ; 3. To achieve fairness, a self-represented party’s time is a minor factor in the consideration of costs , and then only to the extent that the self-represented party has spent more time on the matter than one would expect a represented party to have spent. 4.

The Court’s discretion should be exercised after an analysis of the Dechant factors; 5. Only after the Court has exercised its discretion in favour of awarding costs to a self-represented litigant should the Court determine the quantum of costs; 6.

Schedule C is a guide to determining quantum, but the Court may exercise a discretion to award a lump sum, or all or a portion of

Schedule C costs; and 7. The Court should try to avoid turning the assessment of costs into a further trial. I will offer a few further observations: 1. It would be very rare for costs in favour of a self-represented litigant to exceed the amount of costs that would be awarded to a represented party in the same case; in other words, if

Schedule C column 1 would normally be appropriate, the self-represented litigant should not receive more than that even if his or her lost opportunity costs exceeded that amount; 2. It is difficult if not impossible to reconcile the principles in Dechant and Hogarth with a self-represented litigant being awarded

double costs under Rule 4.29, or enhanced costs unless the self-represented litigant can demonstrate that such amounts are still within what the litigant can prove on balance is within his or her lost opportunity; 3. Issues such having been taken unfair advantage of procedurally or misconduct by the other party during the litigation (such as those things usually advanced by parties seeking solicitor and client costs or enhanced costs) may justify in appropriate circumstances some measure of punitive cost award in favour of a self-represented litigant. 4.

I think there is a clear distinction to be made between litigation initiated by a self-represented litigant or maintained by the litigant him or herself after counsel has withdrawn for whatever reason, and a litigant responding to litigation brought against him or her. It seems to me that there is less worry about a litigant turning the litigation into an occupation when the self-represented litigant is the defendant or respondent. The litigant may have little choice but to represent him or herself for financial reasons.

Legal aid is rarely available for civil litigants outside the family law area, and even in that area is limited to very poor litigants. A sued person has no choice but to respond, and faces a system where his or her legal costs will be fully indemnified on success only in very exceptional circumstances. [paras 25-27 and 29-31] [emphasis added] [ 20 ] In that case, Graesser J.’s analysis (paras 32-48) closed with emphasis on the “Schedule C as benchmark” and “loss of opportunity” factors: As a starting point, I am drawn to

Schedule C. The appropriate column is column 1, because this is a matter with no specific dollar amount involved . That column provides for a “fee” of $1500. I would observe that in the context of judicial review, $1500 falls far short of the Rules’ underlying objective: to provide partial indemnity for the usual legal fees incurred in such a matter. In a case like this, it would not be unusual or inappropriate to increase the basic fee by either a multiplier or an inflationary factor. Double Column C would be $3000. Inflation is about 40% above what the cost of living was when

Schedule C was last adjusted. That would take the tariff amount to $2100. I am inclined to use the multiplier as I consider the basic tariff (column 1) to be generally inadequate for a judicial review application. In the absence of specific information about any actual loss of wages or opportunity costs, I will apply Rule 10.31(5). I set AB’s costs at 1/3 of the adjusted amount, namely $1,000. AB is also entitled to be reimbursed reasonable disbursements (filing fees, photocopying, courier costs, etc.) plus GST on those amounts . I use that fraction recognizing that I have no other information on which to assess opportunity costs.

Schedule C costs (as adjusted) are in the normal situation the maximum that a self-represented litigant might expect . AB’s time and effort is clearly worth something, especially in the context of him being a defendant or respondent.

I do not think a cost award in that range would act as an incentive to others to represent themselves or that it offends any other policy objectives regarding costs in litigation. [ 21 ] In Koopmans v Joseph (cited above), Greckol J. (as she then was) addressed upstream legal costs incurred by a self- represented-at-trial party: The Applicants suggest that Hogarth precludes an awarding of costs to self-represented litigants. However, Hogarth states only that generally, self-represented litigants will not be awarded costs.

Ultimately, as both Hogarth and LL suggest, judges must make determinations on a case-by-case basis , applying the principles identified in Dechant . Mr. Koopmans has provided a record of the invoices he has received and paid to lawyers who assisted him with the various applications, the trial, and the appeal. It is common knowledge that litigants often cannot afford legal fees for litigation. Hence, there has developed a practice where legal services are unbundled so that lawyers provide only partial services to assist the litigant to advance the case.

That is what occurred here; it is only fair to reimburse the litigant for those costs . In addition to the legal work provided to Mr. Koopmans on a piecemeal basis, he spent hours preparing and arguing the case, a case that, as I noted many times during the hearing, was one that would likely have settled, had Mr. Koopmans’ concerns about the services rendered and the last account been addressed. The matter was not simple and Mr. Koopmans worked hard to explain it thoroughly to the Courts. A great deal of time was required.

In my view, this case falls within the principles established by Dechant and LL, and I am satisfied that the award of costs was warranted. Costs for self-represented litigants are specifically allowed by Rule 10.31(5). [paras 34- 36] [emphasis added] [ 22 ] In Kent v Martin , 2017 ABQB 27 , Strekaf J. (as she then was) found that extensive upstream legal costs justified certain taxable-cost recovery for a successful self-represented-at-trial litigant: Costs for steps taken by self-represented individuals can be included in a taxable costs calculation in an appropriate case pursuant to rule 10.31(5) .

However, self-represented litigants should generally not receive costs unless doing so would serve the policy reasons for which costs awards are made, to partly indemnify the successful party for the costs of the litigation, to encourage settlement, prevent vexatious or harassing litigation and encourage economy and efficiency: Hogarth v Rocky Mountain Slate Inc , 2013 ABCA 116 at paras 8-10 . Mr. Kent was represented throughout much of the litigation. I accept that it was very expensive, which was the reason he elected to represent himself for some steps.

In this context, I do not consider it unreasonable to include such steps in my estimate of his taxable costs . Below is my estimate of the Plaintiff’s taxable costs under Column 3 … [paras 66 and 67] [emphasis added] [no discussion of this point in appeal decision ( 2018 ABCA 202 )] [ 23 ] In Lawson v Lawson , 2020 ABQB 519 , Devlin J. considered Dechant and Edmonton Police Service (among other cases) on the overall approach to self-representation and costs and Koopmans on the aspect of upstream legal costs and used

Schedule C as the reference point : The “legal coaching” that Mr. Lawson received [“legal advice he sought in advance of the hearings where he represented himself”]

would not normally be awarded over-and-above

Schedule costs, as that I would constitute a double counting of fees for legalservices. However, I do consider the costs incurred in this regard, which appears to have been money well-spent. Indeed, bothparties’ materials were of good quality and helpful to the court, save and except for when they devolved into ongoing disputesunrelated to the matters at hand. In terms of time away from work, while courts will sometimes consider this in formulating their approach to costs, the motherproperly points out that Mr.

Lawson has not shown that he in fact incurred any loss in compensation from work, as he is asalaried employee. Turning to the conduct of the case, neither party behaved unreasonably within the conduct of these motions. The conduct of both partiesoutside of it was less than ideal, but that is not a factor upon which to award costs. I do not find that the policy aims related toencouraging the proper conduct of litigation have much application this case. Indeed, to the contrary, I am concerned that any award of costs may well incentivize further resorts to the courts in this already high-conflict relationship.

I am satisfied that, upon the principle enunciated by Justice Greckol (as she then was) in Koopmans, the funds expended by thefather to get legal advice supporting his self-representation should be taken into account. That said, this case falls short of one inwhich full indemnity for those expenses will be granted. Finally, much of the affidavit evidence before me centred on the mother’s financial means. In short, she is in a weaker financial positionthan the father. She relies on this fact to plead for clemency on any costs award.

In the case of a parenting dispute such as this, thereis a very real concern that significant costs award against an indigent parent will negatively impact the children. Here, I considerthis factor as one militating favour of restraint. Taking

schedule C as a reference point, the basic costs award for two morning chambers applications would be $675 x 2, or $1350 fora represented party. In all the circumstances of this case, I find an award in that range excessive. In the final analysis, I will exercise my discretion to award the father slightly less than half of the fees incurred for advice toconduct these applications, together with his $50 filing fee. That comes to a total of $800.

This amount will hopefully incent themother to pay attention to Court proceedings, will somewhat defray the costs the father incurred to clarify and enforce the terms of theparenting Order, but encourage neither of them to resort to the Court’s processes if basic, sensible communication and accommodationcan avoid it in the future. [paras 18-21 and 25-28] [emphasis added] [24] In Sehic v National Home Warranty Group Inc, 2020 ABQB 180, Grosse J. too used

Schedule C as a reference point: NHWG has conceded that Mr. Sehic should have $1250 in costs for the appeal itself, which is based on item 8 of Column 2 of ScheduleC. This amount is more than fair in the circumstances of this case, and should be inclusive of fees, disbursements and other charges. Asset out above, self-represented litigants are not necessarily entitled to full costs according to

Schedule C. I have no informationbefore me to justify a particular amount for Mr. Sehic on the basis of lost opportunity. … [para 6] [emphasis added] Unproved allegations of sexual abuse and costs [25] The following decisions consider the impact of such allegations. [26] In Kenora-Patricia Child and Family Services v DC, (ONCJ), Little J. warned that continued suchallegations, if not borne out, could lead to costs consequences: … there may be a consequence in costs for the persistence of untrue allegations of child sexual abuse.

There have been hugeamounts of money spent by the Kenora-Patricia Child and Family Services, by the police and by the Child Development Centreinvestigating the past allegations. And it may be within the context of this case that there will have to be a finding one way or the otherwhether or not N.P. has been sexually abused by her father. But given the past history, I think Mrs. D.C. should cautioned, as I amcautioning her now and as you no doubt will confirm with her. If the allegations are ultimately found to be unsubstantiated anduntrue, the fact of their having been made repeatedly will expose Mrs.

D.C. to an application for costs payable by her at theconclusion of this case. I mention it now because it is something that should be thought about now. [para 26] [emphasis added] [27] In PAL v LAL, 2016 BCSC 1410, Punnett J. addressed costs in circumstances of unestablished allegations of sexual abuse: In light of my findings quoted above I am satisfied that the conduct of the defendant was reprehensible, egregious and deserving ofreproof or rebuke.

She used unsupported and unproven allegations of sexual abuse over a period of nine years to manipulate theMinistry of Children and Families as well as other third parties to prevent the plaintiff from being a meaningful part of hischildren’s lives. The allegations were without merit. In addition she used those allegations to frustrate the efforts of the plaintiffthrough the court system to gain parenting time with his children.

Taking into account the history of the proceeding, the conduct of the defendant, the financial circumstances of the parties and thefinancial impact an award of special costs will have on the defendant, I award special costs [understood as meaning indemnity-levelcosts] to the plaintiff from April 28, 2009 to the date of judgment.

If not agreed upon the costs as ordered shall be assessed by the registrar. [paras 32, 33 and 36] [emphasis added] [28] In OM v SK, 2020 ONSC 4675, Bell J. awarded indemnity-level costs in similar circumstances: Under Rule 24(8), where a party has acted in bad faith, the court shall order costs on a full recovery basis, payable forthwith. Theintentional failure to follow an order or an agreement to achieve an ulterior motive will constitute bad faith. In order to come within the

meaning of bad faith in Rule 24(8), the behaviour must have been carried out with intent to inflict financial or emotional harm on theother party, or to deceive the other person or the court. The intent to inflict harm does not have to be the person’s sole or primary intent,but rather, only a significant part of the person’s intent ((S.(C.) v. S.(M.), (ON SC), at para. 17; Beaver v. Hill, 2018ONSC 3352, at para. 32). Unreasonable behaviour, even if it does not rise to the level of bad faith, can result in an order for costs on a full recovery basis (Jacksonv.

Mayerle, 2016 ONSC 1556, at para. 62. citing Sims-Howarth v. Bilcliffe, (ON SC)). Parental conduct that alienates a child from the other parent amounts to bad faith within the meaning of Rule 24(8) (M.G. v.G.G., 2010 ONSC 792, at para. 9; Cantave v. Cantave, 2014 ONSC 5999, at para. 9). I have no hesitation in finding that S.K.’s behaviour in relation to the child’s contact with her father rises to the level of bad faith.

In myreasons for decision, I found that S.K. had engaged in significant alienating behaviours, including by engaging in “badmouthing”behaviour, limiting and interfering in the child’s contact with O.M., attempting to create the impression that O.M. is a person tobe feared, and by over-involving the child in adult and litigation matters. Most significantly, I found that S.K. had fabricatedallegations that O.M. had physically and sexually abused the child.

While the evidence before me did not establish that the child wasexhibiting the behaviours of an alienated child, I found that S.K. was depriving the child of her relationship with her father and thather behaviour evidenced a disregard for the importance of the child maintaining a healthy relationship with both her parents. Iconcluded that it was necessary, in the short term, to limit S.K.’s access to the child to stop S.K. from pursuing her campaign to deprivethe child of her relationship with her father and to permit the child and her father to rebuild their bond. ...

S.K.’s behaviour was clearly aimed at undermining and depriving the child of her relationship with her father.

On this basis, too, I find that O.M. is entitled to full recovery costs of the motions. [paras 15-20] [emphasis added] [29] In AT v LTH (formerly LTT), 2005 BCSC 515, Davies J. anchored costs in part on unsubstantiated allegations of sexualabuse: In normal circumstances, L.T.H.’s persistent advancing of scandalous allegations of sexual abuse against A.T. without reliableevidentiary foundation would be deserving of rebuke by an award of special costs and I would make such an award if I were notsatisfied that rather than improve the prospects for a more normal life for S., it would further exacerbate a situation that may already beirremediable.

I have accordingly determined that in all of the circumstances A.T. should have the costs of all of the proceedings and applications in thiscase since July 17, 2003 based upon Scale 4 to reflect the very difficult nature of these applications and the extensive accumulation ofevidence that the conduct of L.T.H. and V.H. has necessitated.

I make that order for costs knowing full well that it may cause economic hardship but L.T.H. must understand that there arefinancial consequences to bringing serious unfounded allegations of abuse to court and requiring that they be defended. [paras151-153] [emphasis added] [30] In KAB v RMB, 2022 ABQB 542, Kendell J. declined to award solicitor-client-level costs but did award enhanced costs in agroundless-accusations context, emphasizing the alleger’s mental-health difficulties: Counsel for the Father argued that a party’s actions can become misconduct when there is no reasonable basis to continuelitigation, arguing that the Mother pursued this matter to a multi-week trial in the face of multiple professionals concluding thatthe alleged abuse could not be substantiated or did not occur.

While there is validity to Counsel’s submission, I found that theMother had convinced herself of the truth of the allegations; to this day, she maintains her view that the Father is her and herchildren's “abuser”. I am also mindful of the significant amount of medical evidence provided to this Court which supports my finding that there areunderlying mental health concerns which clearly influence the Mother’s perception and conduct. It would be unjust indeed if Ipenalized the Mother with a financially devastating solicitor-client cost award, armed with the knowledge of the Mother’s mentalhealth concerns.

Further, the children need their mother to engage in the therapeutic interventions required to allow her to be a part oftheir lives – interventions that will no doubt be extensive and costly. An award of solicitor-client costs could prevent the Mother fromaccessing same. That is not to say that the Mother’s underlying mental health concerns absolves her of costs consequences; the Mother was still requiredto act reasonably during these proceedings. Counsel did raise one Alberta case, JSV v CGR, 2018 ABQB 247, where the late Honourable Justice Hopkins granted solicitor-clientcosts in a family law dispute.

I have reviewed the case and it is distinguishable from this matter, as it does not appear that Hopkins J hadbefore him evidence of an underlying mental health concern, which I find is a significant contributory factor to the Mother’s conduct. While I am not prepared to grant the Father’s request for solicitor-client costs, I am satisfied that this is a case where enhanced costs areappropriate.

In my view, enhanced costs strike an appropriate balance between the consequences of the Mother’s litigation behaviour andher mental health concerns, which I find are a significant underlying cause of her litigation behaviour.

Bearing in mind that the Mother’s litigation behaviour was not motivated by malice, but rather came from a place of mentalillness, I have concluded that the total costs award should be $75,000, broken down as follows: legal fees of $66,959.01 plusdisbursements of $8,040.99. … [paras 376-380 and 383] [emphasis added] [31] In JSV v CGR (cited by Kendell J. above), Hopkins J. awarded indemnity-level costs for (among other misconduct)baseless sexual-abuse allegations:

The mother applies for full indemnity costs, or solicitor and own client costs after June 1, 2013 and party-to-party costs prior to June 1, 2013. The mother also claims disbursements, including expert fees. The mother argues she is entitled to costs based on her success and the misconduct of the father during the course of the litigation. She argues the father failed to produce relevant and material records . He failed to cooperate with the court appointed expert tasked with preparing a Practice Note 8 assessment , which delayed the proceedings for several months.

The father failed to obey interim parenting orders , including provisions for telephone access, resulting in an order for contempt being made against him. Most seriously, the father and his family maintained what turned out to be defamatory and false allegations of sexual assault against the mother regarding their two minor children. The mother argues it is difficult to imagine a more scandalous and damaging allegation against a parent, which severely limited her access to her children for almost four years and hurt her standing in the community.

While it would also be possible to award enhanced costs in this instance, I have no difficulty on the facts of this case determining that the conduct of the father in the context of this litigation meets the standard of “reprehensible, scandalous or outrageous conduct” for an award of indemnity costs described by the Supreme Court of Canada in Young v Young .

In making this finding, I am able to rely on the order for contempt entered against the father; the father’s blatant, willful and deliberate disregard of court orders ; the failure to fund the court expert when ordered to do so; and the intentional late disclosure of the videotaped evidence of the sexual abuse allegations by one of the children, contrary to his undertaking and a subsequent court order. It is plain and obvious to me that the father took a contemptuous approach to this litigation and is guilty of positive misconduct, and that this conduct is deserving of sanction by this court.

I consider this case to be one of those “rare and exceptional circumstances” where the objectives of deterrence and punishment would be best served by an order for solicitor-client costs. These factors described by the mother accord substantially with those enumerated for indemnity costs in Jackson v Trimac , and endorsed by the Court of Appeal in FIC Real Estate Fund Ltd .

In addition to contemptuous conduct and the failure to abide by court orders amounting to positive misconduct , Justice Graesser in Recovery Production Equipment Ltd also specifically alluded to “allegations of morally reprehensible conduct by such party are proven groundless. . .” and where relevant and material evidence is intentionally withheld to defeat justice. I am also satisfied based on the evidence at trial that the allegations that were made were ultimately baseless and false, and part of an attempt to defeat the legitimate claims for custody made by the mother in these proceedings .

The deliberate and malicious conduct by the father in this matter has had serious personal repercussions for the mother and is likely to have seriously impacted both children, resulting in an order for reunification therapy. There is no doubt in my mind the father’s misconduct has resulted in lengthening the proceedings and costs associated therewith. The father also argued he is impecunious, but, as was found by Justice Michalyshyn, impecuniosity is not relevant to the father’s liability for costs (at paras 229-230, citing Chouinard v Skippen , 2013 ABQB 465 , at para 18 ).

I consider it appropriate to order costs on an indemnity basis, rather than an ordinary or an enhanced basis, not only to compensate, but also to punish for the father’s reprehensible conduct . [paras 3, 25, 26, 29-32] [emphasis added] Application of those principles here [ 32 ] In light of this case law guidance, these are the key factors here: 1. overall success : the father was clearly the successful party in the parenting trial, with the mother failing to prove that he had abused the youngest child or even that there was any material possibility abuse had occurred, and with his shared-parenting proposal largely being accepted; 2. self-representation : the father was self-represented in the final lead-up to the parenting trial (last handful of months) and at the trial himself.

However, he was represented by counsel (three different lawyers) for approximately two years (cumulatively), with some of that legal work consisting of preparation for the parenting trial. In other words, for costs purposes, this is a hybrid case, with the question becoming what costs were incurred for or relating to that trial; 3. actual legal costs : the father presented statements of account from the three counsel who assisted him. The first batch appears to relate exclusively to criminal proceedings brought against the father which were later stayed.

I do not see this work (reflected in accounts totalling approximately $8,000) as having a sufficient connection to the parenting trial and so leave aside those accounts in this costs exercise. Same for the second batch (accounts totalling approximately $17,000), which appear (per the statements of account) to almost exclusively or at least predominantly to ongoing interlocutory proceedings (bringing and responding to various applications and other matters having no direct bearing on the parenting trial).

The third batch reflects work done by the last lawyer to assist the father, starting in early 2020 (i.e. almost two years before the first trial). In contrast to the first two batches, these accounts reflect work directly connected to both trials e.g. reviewing the trial-related pleadings, preparing additional trial-related pleadings, arranging for and working with various expert witnesses (most of whom ended up testifying at the parenting trial) including coordinating a PN7 report by one of them, preparing affidavits of records, and generally preparing for both trials.

Per the father’s draft bill of costs, these accounts totalled approximately $63,000. However, his calculation is off-target. The actual total of the eighteen statements of account (from January 9, 2020 to August 31, 2021) included in the father’s cost materials is $33,569. (This is the total of the “net of fee discount” figure on each of those accounts.) In other words, instead of the approximately $87,000 claimed by the father ($8,000 + $17,000 + $62,000), his trial-related legal costs are,

at most, $33,569. I say “at most” because, as far as I can tell, the third lawyer was assisting the father with preparation for both trials here i.e. the property-and-support trial heard in late November and early December 2021 and the parenting trial that was supposed to be heard immediately following that trial but which, for various reasons, had to be adjourned to July 2022. The statements of account confirm that the large bulk of the trial-preparation work was focused on the parenting trial, particularly the work relating to the expert witnesses and the PN7 report.

The accounts did not expressly identify which trial various other (more generic) steps related to e.g. working on affidavits of records, reviewing case law, etc. While precision is not possible here, I believe it is fair to attribute 75 per cent of the third lawyer’s work to the parenting trial and 25 per cent to the property-and-support trial.

Accordingly, I see the father’s actual legal costs underlying the parenting trial as approximately $25,000; 4. loss of opportunity : the father’s draft bill of cost includes this line item: “Self-litigant opportunity costs and out-of-pocket expenses.” However, no evidence at the parenting (or other) trial showed that the father, who was full-time employed before, during and after the first trial and through to and during the parenting trial, took unpaid leave or otherwise suffered a loss of income as a result of self-representing at either trial. (The father reported more recently that he has lost that employment, attributing it to fall-out from the mother’s allegations against him.

But that is not in evidence. And it does not square with the mother’s core and most serious allegations against him having been found to be unproven. In any case, any such loss of position is downstream of the trial itself i.e. cannot be a factor in gauging trial costs); 5. impact of

Schedule C : per some of the cases above,

Schedule C, aimed at providing partial reimbursement for legal costs incurred, does not apply where the costs-entitled party self-represented. As noted, this is a hybrid case, with the father having been represented for approximately two years in the lead-up to the first trial. That work related to the following

Schedule C items and associated cost amounts (using column 1 for the parenting trial, with no particular monetary amounts directly at stake): #1(1) Commencement documents, pleadings, etc. $1,350 #3(1) Disclosure of records $650 #3(2) Review of opposite party’s records $675 #9(1) Trial readiness / case management $340 #10(1) Preparation for trial $2,700 TOTAL $5,715 6. settlement offers : the father points to three offers made by him.

The first, prepared by his second lawyer and sent to the mother’s then counsel in April 2019, proposed resolution (via consent order) featuring the father becoming the primary parent of the oldest child and the parties having shared parenting of the younger two children. With the father not achieving this outcome at the parenting trial i.e. not bettering this offer, it has no effect on costs; Same for the second offer, prepared by the father himself (letter dated September 28, 2021 sent to the mother’s next counsel, who represented her in the lead-up to and at both trials).

In it, the father proposed very detailed parenting terms (addressing, for instance, “responsibilities to the children”, “responsibilities to the other parent”, “pick-ups and drop-offs”, “holiday schedules”, etc), which the father largely succeeded in obtaining at the parenting trial. However, the foundation of his proposal was immediate shared parenting of all three children, with all three children moving back and forth between households on a weekly basis. The father did not achieve that core result at the parenting trial.

While notionally all three children are subject to shared parenting, the older child has the final say on whether she will move back and forth weekly or at all i.e. she effectively has a veto over whether to shift to any parenting by the father (albeit with reunification therapy to be pursued for the father and that child). As well, the trial judgment imposed a ramp-up period of approximately four months i.e. did not adopt the father’s immediate-shift proposal. In other words, the father did not exceed or even meet the terms of his second offer.

As for the third “offer”, the father attaches a transcript of discussions between himself, the mother’s counsel, the mother, and Macklin J. at what was effectively a pretrial hearing (with the parenting trial initially scheduled before Macklin J. and later reassigned to me, having heard the property and support trial involving the same parties and some overlapping evidence). At that hearing, Macklin J. canvassed possible resolution with the parties.

However, it is difficult to perceive that the father made any particular settlement proposal during those discussions or, if he did, that it was any different than his second offer. All said, none of these settlement offers (or “offers”) has any bearing on costs, with none of them matched or exceeded by the parenting trial outcome; and 7. sexual-abuse allegations : here is where the father’s cost submissions gain traction.

Here is what I concluded about those allegations in the parenting trial: For the above reasons, I find that the mother has not proved any of these allegations on a balance of probabilities or even that a material chance exists any of them occurred .

Instead, I find that, fueled by her negative perceptions of the father, acquired over many years of bitter battles in many dimensions of their lives together and post-separation, perhaps exacerbated by his battering-ram-style manner at times (as detailed further below) and ultra-legalistic bent (also discussed further below), the mother decided consciously or subconsciously that the solution to their unceasing difficulties was to largely eclipse the father as a parent .

I find that, to that end, she constructed or at least came to believe in these allegations and, through her, the children (particularly the younger daughter) as well .

The mother is so locked into her abuse allegations that, as explained above, she was steadfast that Ms. Perrin had changed her evidenceon a critical point, with no basis for that belief. The mother’s attempt to eclipse the father’s parenting role has failed or, at best for her, her abuse-allegations beliefs have not beenvalidated here.

Accordingly, the allegations of sexual abuse are what is actually eclipsed here. [paras 75-80] I also made these findings (among others): … the mother: ▪ has extremely negative perceptions of the father, to the point of labelling him a “monster” and a “psychopath”; ▪ has allowed her extremely negative perceptions of the father to become known to the children, especially X, to the point that they arenow oriented against him, or at least X and Y; ▪ has done so to the extent of making X feel bad if she reports having enjoyed time with the father and, as reflected in some of the CFSreports, of encouraging X to believe she (

X) was sexually abused, as a young child, by the father, with no evidence to support that belief; ▪ that has included giving them incorrect information, whether sincerely believed or not by her, to the children about mistreatment ofthem by the father, or exaggerated perceived instances of such treatment, or otherwise arranged for the children to believe, incorrectly,that the father has sexually or physically abused them; and ▪ has done so in the hopes of eclipsing or sharply minimizing the father’s role as a parent; I also find that: ▪ each has allowed the children to be exposed to, and harmed by, their personal conflict; ▪ the mother has done much more of that; ▪ X has largely become estranged from the father; ▪ Y is largely not keen on the father and prefers to be under the mother’s wing; [and] ▪ the mother is largely responsible for those orientations … While I couched some of these findings as possibly representing the mother’s sincere perceptions, the parenting trial did not unearth anyobjective bases for her sexual-abuse concerns.

And it showed a persistent pattern of her repeating or attempting to revive allegationsruled unfounded by both police and Child and Family Services investigators. And becoming so locked into her allegations that (asexplained in paragraphs 54-63 of the parenting-trial judgment (2022 ABQB 528)), she insisted that a key CFS witness had changed herevidence, at trial, on a critical point (i.e. whether the couple’s middle child had learned of certain abuse allegations centering on theyoungest child from that child or from the mother herself) when plainly the witness had not.

In JSV, Hopkins J. ordered indemnity-level costs, albeit giving the cost-liable party an opportunity to challenge the reasonableness of thelegal costs paid by the other: I order indemnity for costs on a solicitor-and-client basis, for all matters arising within the “four corners of the litigation,” including alldisbursements and expert fees for all steps taken after the divorce proceedings were commenced in April 12, 2010. This is different fromthe bill of costs provided for all legal services on a solicitor-and-his-own-client basis provided by the mother in support of thisapplication.

The parties may apply to have costs taxed by an assessment officer if they are unable to agree on the precise measure. [para35] That squared with a common requirement that, where solicitor-client or indemnification-level costs are ordered, the cost-liable partymust have an opportunity to test and challenge the reasonableness of the costs paid: see, for example, TWG v CMJ, 2004 ABCA 64 atpara 6; Bird v Bird, 2004 ABCA 78 at para 27(a); HSBC Bank Canada v Serval Corporation, 2000 ABCA 169 at para 15; andPetrogas Processing Ltd v Westcoast Transmission Co, (ABQB) (O’Leary J. as he then was) at para 44.

However, an opportunity to tax is not mandatory. The Court can perform its own overall assessment of the reasonableness of costs:Caterpillar Tractor Co v Ed Miller Sales & Rentals, 1998 ABCA 118 at para 15.

In the circumstances here, given the high volume of litigation on points large and small over the last few years, combined with myopportunity to review the statements of account of the third lawyer (with the first-trial-related costs already sifted out), and recognizingthat, even if the third-lawyer costs were taxed down (e.g. for any perceived inefficiency or repetitive work), any reduction would beoffset fully or at least materially by accepting that some portion (even if relatively small) of the second lawyer’s work was parenting-trial-related, I find that $25,000 represents reasonable legal costs incurred by the father in the lead-up to the parenting trial andunderlying the captured-by-Schedule-C activities described above and for any other legal work reasonably associated with preparationfor the parenting trial not falling under any of the

Schedule C categories. D. Mother’s position on costs [33] The mother’s position was effectively that she had not made unsubstantiated allegations and that she could not afford to pay

any costs award. [ 34 ] I did not and do not accept her first argument, for the reasons outlined in the parenting judgment. [ 35 ] On the second, Alberta law is clear that ability to pay is typically not a factor when gauging costs. I do not see any reason to depart from that approach here, particularly given the availability of set-off here (also as discussed below). E.

Conclusion [ 36 ] The appropriate outcome, anchored largely in the father’s success in rebutting the sexual-abuse allegations (as explained in the above excerpts from the parenting trial), and adopting the analyses in the baseless-allegations case law described above, is to award him costs of $25,000 for the parenting trial i.e. his reasonable legal costs incurred by him in relation to the parenting trial, which vindicated his no-abuse position and generally accepted his shared-parenting position. [ 37 ] I also award the father the following disbursements (subject to potential adjustments as discussed below): Sharon Smith PN 7 report $10,850 Sharon Smith report and trial attendance $1,400 Dr.

Stephen Carter report and trial attendance $1,100 Dr.

Perry Sirota report and trial attendance $1,100 Sherilyn Connor report and trial attendance $600 Trial fees $600 TOTAL $15,650 [ 38 ] I do not include a claimed disbursement for an expert report and trial fee of Mark Poechman (relating exclusively to the first trial), a claim for $50 relating to an application (where entitlement to disbursements could and should have been spoken to) or (as already found above in part) for any opportunity costs or out-of-pocket expenses. [ 39 ] The above disbursements award is subject to adjustment if it turns out that the mother has already paid any portion of a given disbursement or if a previous order or case-management direction has already addressed the load-sharing for a given disbursement and that disbursement has been paid in line with that load sharing. [ 40 ] The father can set off his net costs entitlement against spousal support payments due by him to the mother, but not against child-support payments: SAL v BJL , 2019 ABCA 350 at para 24 . [ 41 ] I do not award any costs for this costs exercise itself.

Heard by way of written submissions dated 23 rd and 30 th of September 2022. Dated at the City of Edmonton, Alberta this 15 th day of December, 2022. M. J. Lema J.C.K.B.A. Appearances: CMB Self-Represented Litigant AMB Self-Represented Litigant