Fodor v Fodor, 2022 ABKB 854

Court of King’s Bench of Alberta Citation: Fodor v Fodor, 2022 ABKB 854 Date: 20221219 Docket: 4803 186872 Registry: Edmonton Between: Alan Clayton Fodor Plaintiff - and - April Louise Fodor Defendant _______________________________________________________ Decision on Costs of the Honourable Justice Kevin Feth _______________________________________________________ [ 1 ] Following a

Summary Trial, I delivered an oral judgment addressing the division of matrimonial property and the duration of spousal support. Success on those issues was divided. Nevertheless, April Fodor requested the opportunity to address costs in writing, which was granted. I have now received and reviewed the written costs submissions of both parties. [ 2 ] Ms. Fodor seeks elevated costs. She submits that she was substantially successful. Further, she attempted to reach settlement by providing a Calderbank offer. [ 3 ] Alan Fodor contends that each party should bear their own costs because neither party was substantially successful. Analysis [ 4 ] Three main issues were determined at the

Summary Trial:

a) the valuation of Mr. Fodor’s exemption in funds traced from an RRSP account;

b) the assessment of Mr. Fodor’s income from 2019 through 2022 for calculating child support; and

c) the duration of ongoing spousal support.

[ 5 ] First, Mr. Fodor was wholly successful in the valuation of the exemption, resulting in a net exemption of $20,379.20. Ms. Fodor opposed the exemption arguing that it was insufficiently proven or should be disregarded, or alternatively, requested that the quantum be reduced to $6,567.20. [ 6 ] Second, Mr. Fodor was also successful in the assessment of his income. For each of 2019, 2020 and 2021, the parties were substantially in agreement. Mr. Fodor made minor concessions at trial, accepting Ms. Fodor’s figures to simplify the proceeding. For 2022, Mr. Fodor contended that his income is $192,075. Ms.

Fodor argued that an additional $100,000 should be attributed to his income. Her argument failed. [ 7 ] Once the incomes were established, the parties reached an agreement about the calculation of child support, including the payment of arrears. The final arrears figure was $23,628. [ 8 ] Third, entitlement to and the quantum of spousal support were previously resolved between the parties. Ongoing spousal support was set at $1,375 per month. The only outstanding issue was duration. [ 9 ] The parties married later in life and separated after approximately 16 years together.

By trial, they were both in their late 50’s. [ 10 ] Mr. Fodor sought to terminate spousal support when he reached age 65, even if he continued to work, resulting in ongoing spousal support for approximately another six years. Alternatively, he proposed an automatic review at age 65 to determine whether spousal support should continue. Ms. Fodor opposed. She sought indefinite support, subject to any future application based on a material change in circumstances. I ruled in Ms. Fodor’s favour. [ 11 ] The financial impact of my ruling, however, is unknown at this time.

A change in circumstances might arise at any time, including before Mr. Fodor reaches age 65. Either party’s circumstances might change for various reasons, including reasonable retirement. No analysis of the contingencies was presented. [ 12 ] Substantial success does not require success on every issue or argument: Mahe v Boulianne , 2010 ABCA 74 at para 6 ; Johannson v Haaranen , 2019 ABCA 197 at para 4 . After considering the competing interests and based on the findings at trial, neither party was substantially successful. [ 13 ] Ms.

Fodor’s Calderbank offer was delivered to opposing counsel approximately two months before the trial. The key features of the offer included:

a) a proposed matrimonial property division that proved to be roughly equal to the property division after trial (the judgment required Mr. Fodor to pay $2,425 less to Ms. Fodor but under the offer he was allowed to retain some other personal property items, apparently having equivalent value, which balanced out the equalization payment);

b) Mr. Fodor’s child support arrears calculated at a figure approximately $2,000 higher than the figure he was directed to pay after trial;

c) Child support for 2022 calculated on the basis of Mr. Fodor earning an additional $100,000 but subject to recalculation after his 2022 Income Tax Return is filed; and

d) Ongoing spousal support calculated for either a 9 year fixed term or in a lump sum. [ 14 ] The proposal about ongoing spousal support is described in the Calderbank offer as follows: With respect to spousal support, there needs to be some consideration with respect to the increase of disposable income to Mr. Fodor once he ceases to pay support for [their child]. The spousal support calculations for no children at midrange is $2,742 per month. If Mr. Fodor wants an end date, Ms. Fodor is prepared to offer 9 years, or 108 months or $296,136. With a 40% discount, Mr. Fodor would pay to Ms. Fodor $177,681.60.

For purposes of this offer only, Ms. Fodor is agreeable to a lump sum of ongoing spousal support in the amount of $150,000 . Mr. Fodor will also pay $5,000 for the 2021 bonus income. Mr Fodor will also pay $17,500 retroactive award already ordered. [ emphasis added ] [ 15 ] Under the proposal, both the fixed duration and the lump sum contemplated Mr. Fodor paying spousal support until he is approximately 68 years old.

The proposal did not address the possibility of terminating the obligation at an earlier date due to a change in circumstances. [ 16 ] The terms of a Calderbank offer, like any settlement proposal, must be clear, precise and certain to make a binding contract if accepted: Battaglini v Battaglini , 2021 ABQB 89 at para 55 [ Battaglini ]; Holizki v Alberta (Public Trustee) , 2009 ABQB 260 at paras 46 and 55 . [ 17 ] Calderbank offers are relevant to costs, but double costs or elevated costs are not presumed: Bruen v University of Calgary , 2019 ABCA 275 at paras 7-8 . [ 18 ] When considering a Calderbank offer, the Court examines whether the party making the offer fared as well or better at trial, but even offers falling short of the trial outcome may be considered in assessing costs: Cornelson v Alliance Pipeline Ltd , 2015 ABQB 152 at para 48 ; Sutherland v Encana Corporation , 2014 ABQB 601 at paras 36 and 42 ; Battaglini at paras 62-68 . [ 19 ] Where the offer was less than but very close to the trial outcome, the Court may consider whether accepting the offer would have been a reasonable and proportionate compromise in all the circumstances: Battaglini at para 73 .

Choosing to proceed with litigation when the expense is disproportionate to the remaining interests at issue may be a factor in assessing costs.

[ 20 ] Here, the Calderbank offer contained proposals for the equalization of matrimonial property and the calculation of child support arrears that, in aggregate, were close to the outcome at trial. Nonetheless, the offer was significantly different from the trial outcome in two respects. [ 21 ] First, Mr. Fodor’s income would have been over-assessed by $100,000 resulting in the substantial overpayment of child support for many months pending recalculation. At trial, I concluded that Mr.

Fodor was experiencing financial hardship in meeting all his obligations including the payment of child and spousal support; time to pay the arrears was granted on that basis. The overpayment would have exacerbated that hardship. [ 22 ] Second, and more significantly, the spousal support proposal guaranteed ongoing support three years beyond Mr. Fodor reaching age 65. The trial outcome leaves the duration of spousal support unspecified. Mr. Fodor is protected if a material change in circumstances invites the reduction or termination of support before the time limit contemplated by Ms. Fodor’s offer.

In light of the overall means and needs of the parties, that protection is a substantial consideration. [ 23 ] The

Summary Trial required only one day. The additional litigation expense after service of the Calderbank offer was modest and proportionate to the interests at stake. I conclude that the offer was reasonably rejected. Conclusion [ 24 ] Costs in family law matters normally follow the same principles applicable to other litigation: Shaw v Shaw , 2014 ABQB 165 at para 14 ; Cador v Chichak , 1998 ABQB 881 at para 9 , aff’d 2000 ABCA 10 .

A trial judge’s discretion must be exercised judicially and in accordance with established principles: Lameman v Alberta , 2011 ABQB 532 at para 6 , leave to appeal refused, 2011 ABCA 724 . [ 25 ] Rule 10.29 of the Alberta Rules of Court, Alta Reg 124/2010 confirms the general rule that a successful party is entitled to costs against the unsuccessful party, subject to the Court’s general discretion.

Rule 10.33(1) states that in making a costs award, the Court may consider several factors including the result of the action and the degree of success of each party. [ 26 ] Here, neither party was substantially successful. Having considered the applicable factors, including the overall mixed success at trial and Mr. Fodor’s reasonable rejection of the Calderbank offer, I direct that the parties bear their own costs. Written submissions received on the 15 th day of December, 2022. Dated at the City of Edmonton, Alberta this 19 th day of December, 2022. Kevin Feth J.C.K.B.A. Appearances: Michelle L.

MacKay Bruyer & MacKay LLP for the Plaintiff Robyn L. Smedstad Lawrence & Tkachuk for the Defendant