Ting v Ting, 2023 ABKB 77

Court of King’s Bench of Alberta Citation: Ting v Ting, 2023 ABKB 77 Date: 20230216 Docket: 4803 188092 Registry: Edmonton Between: Madison Ting Plaintiff - and - Andrew Ting Defendant _______________________________________________________ Endorsement on Costs of the Honourable Justice L.K. Harris _______________________________________________________ [ 1 ] The parties are engaged in an ongoing matrimonial action. Between November 29, 2021 – December 7, 2021, they proceeded to a seven-day trial on the issues of mobility and parenting of their young son.

Following the trial and after receiving written submissions, I issued a decision on March 25, 2022 in favor of the Plaintiff mother, and granting the Plaintiff costs of the trial; Ting v Ting , 2022 ABQB 229 . [ 2 ] The Defendant father appealed my decision but was unsuccessful; Ting v Ting , 2022 ABCA 324 . The Plaintiff sought enhanced costs of the appeal but was denied by the Court of Appeal as it saw no reason to deviate from the default rule that party/party costs be paid by the Defendant as the unsuccessful party under Column 1 of

Schedule C; Ting v Ting , 2021 ABCA 9 . [ 3 ] The parties have now returned to me as they cannot agree on the costs payable to the Plaintiff arising from the mobility and parenting trial. The Plaintiff seeks enhanced costs, while the Defendant says enhanced costs are not appropriate; rather, ordinary party/party costs assessed in accordance with Column 1 of

Schedule C of the Rules of Court should be awarded to the Plaintiff. In

addition, the parties do not agree on some of the items claimed by the Plaintiff in her Bill of Costs. I. Scale of Costs a. The Plaintiff’s Position [ 4 ] The Plaintiff has provided a Bill of Costs totaling $101,210.20. The fees are calculated pursuant to Column 3 of

Schedule C and are in the amount of $67,130. The Plaintiff’s argument in favor of calculating her fees on this basis is threefold: (

a) Although Column 1 is “at best” a starting point for assessing costs in mobility/parenting cases, the Court has considerable discretion under Rules 10.31 and 10.33 of the Rules of Court to assess costs. In McAllister v Calgary (City) , 2021 ABCA 25 the Court of Appeal confirmed that absent misconduct, a successful party ought to receive costs in an amount equivalent to approximately 40-50% of their legal fees. In this case, the Bill of Costs represents approximately 49% of the Plaintiff’s legal fees to the end of the mobility/parenting trial; (

b) The Defendant’s behavior was, and continues to be, obstructionist and overly litigious. That behavior qualifies as misconduct which resulted in increased legal fees and complexity, and should be taken into account when awarding costs; (

c) The Plaintiff made substantive attempts to settle the issues of mobility and parenting, which were rejected out of hand by the Defendant. [ 5 ] The Plaintiff argues that the Bill of Costs as presented represents proper party/party costs in this case, and that enhanced costs in addition to the amounts set out in the Bill of Costs ought to be considered. b. The Defendant’s Position [ 6 ] The Defendant argues that there is no reason to depart from the default rule that costs on Column 1 ought to be awarded.

There was no reprehensible, scandalous, or outrageous conduct during the litigation that would substantiate enhanced costs. The offers to settle made by the Plaintiff did not represent a true compromise and were not made in a timely way such that they should form the basis for enhanced costs, and the Calderbank offer made by the Plaintiff should not apply to a non-monetary settlement in any event. This Court ought to follow the approach taken by the Court of Appeal in that the child’s best interests were at stake and the trial decision had a significant impact upon the Defendant.

The usual policy reasons for awarding enhanced costs ought not to apply in this case. c. Analysis [ 7 ] As the successful party in a family action, the Plaintiff is presumptively entitled to costs, paid by the Defendant. Courts in Alberta do comment that in family cases, those costs are to be presumptively calculated pursuant to Column 1 of

Schedule C. [ 8 ] The issue in this case is whether this is in fact a presumption, and if so, whether I ought to depart from that presumption - either because Column 1 does not represent “reasonable and proper costs” or a “proper level of indemnification”, or because there is a basis to award enhanced costs. [ 9 ] McAllister v Calgary (City) , 2021 ABCA 25 was “a protracted lawsuit” involving novel liability. The Court confirmed that the default rule is that absent misconduct, a successful party is entitled to costs against the unsuccessful party, and that the Court has considerable discretion in deciding to award costs. That discretion, however, must be exercised judicially. Reference to

Schedule C is only one of many options open to a trial judge in assessing “reasonable and proper” costs, but costs can also be assessed based upon a lump sum percentage of legal costs, the use of multipliers or fractions of a certain amount, amongst other tools. The weight of authority is that party/party costs should normally represent indemnification at a level approximating 40-50% of actual costs. Resorting to

Schedule C may not be appropriate if it does not yield an appropriate level of indemnification to the successful party. [ 10 ] In H2S Solutions Ltd v Tourmaline Oil Corp , 2020 ABCA 201 at para 18 , the Court of Appeal recognized the importance of “consistent and predictable applications of the enhanced costs rules…because these rules meaningfully reinforce the importance of encouraging settlement, prevent unnecessary litigation, and ensure a party accepts greater consequences if it gambles and loses”. [ 11 ] However, neither McAllister nor H2S involves a family case, in particular, a mobility/parenting case.

In family matters, there are some special factors that the court must consider. As was noted by Funk, J in King v MacDonald , 2022 ABKB 849 at para 43 : Our courts quite rightly treat costs in family matters differently from costs in other types of litigation.

In family matters, legal costs come out of the budget of the parents and out of the availability of funding for the wellbeing of the children: MYW v MYW, 2021 ABQB 713 at paras 10-11 , citing Jivraj v Jivraj , 2014 ABQB 307 at paras 16-17 . [ 12 ] The following statement by Veit J at paras 16-17 of Jivraj v Jivraj 2014 ABQB 307 is important to consider; In their recent decision in Combined Air Mechanical Services Inc., albeit in the totally different context of alternative adjudication of disputes, the Supreme Court of Canada reminded us that a shift in culture is required to ensure that the justice system be able to provide a fair and just process which is "proportionate, timely and affordable".

As important as is this principle in the commercial context in which it was articulated, this principle is all the more pertinent in family disputes, where the cost of legal proceedings cannot be written off or passed along as a cost of doing business; in family law matters, legal costs come out of the budget of the parents and out of the availability of funding for the wellbeing of children.

The courts and the bar must therefore discourage time and money consuming process which does not aid in achieving fair and just process and which may, in fact, be counter-productive to those ideals. [ 13 ] In both King and MYW , enhanced costs were awarded because of the father’s significant delay in disclosing financial records. There are other recent family decisions from this court in which the guidance in McAllister was followed (as opposed to simply awarding costs based upon Column 1 of

Schedule C). For example, in Brill v Brill , 2022 ABKB 827 , Nixon J awarded the successful party a percentage based upon the range set out in McAllister . In Destine v Cloutier , 2022 ABCA 331 , the court upheld the chambers judge’s award of 40% of assessed costs based upon the conclusion that

Schedule C costs were inadequate. In TM v TA , 2022 ABQB 437 , the court ordered 50% of the successful party’s actual costs. [ 14 ] Finally, this court has already raised the concern that Column 1 of

Schedule C is no longer the presumed default for costs in family matters. As noted by Renke J in Willick v Willick , 2022 ABQB 389 at paras 15-16 : Counsel for Ms. Willick correctly noted that a long-standing approach to costs for family law matters, not including matrimonial property divisions, is that the “presumptive starting point” for costs determinations is Column 1 of

Schedule C: see Smith v Smith , 2016 ABQB 291 , Neufeld J at para 10 (but this was a matrimonial property case and Column 3 was applied – see paras 11-12), 2016 ABCA 376 ; SER v JS , 2020 ABQB 390 , Jones J at para 104 (but a multiplier was applied – see paras 106-107); TM v KM , 2021 ABQB 936 , Romaine J at para 5 (but Column 3 was applied, with adjustments – see para 11). McAllister did not address costs in family law matters. Given McAllister’s admonition that

Schedule C is not a default rule, I suspect that the “presumption” terminology respecting Column 1 of

Schedule C should be avoided. I note, though, that in the cases mentioned the Justices exercised their discretion to award costs deviating from Column 1. With or without McAllister , costs for family law matters have not been confined to Column 1 amounts, even outside matrimonial property divisions. [ 15 ] I conclude, based upon these decisions, that Column 1 of

Schedule C may be an entirely appropriate “landing point” in certain family matters, especially in cases of ordinary complexity with no misconduct on the part of the parties, where there has been a legitimate issue to be litigated and there is considerable concern about costs depleting funds needed for the wellbeing of the children. However, Column 1 of

Schedule C should not, in light of McAllister , be the presumption in family cases, and I must exercise my discretion in deciding costs considering all the circumstances of the case and in accordance with Rules 10.31 and 10.33 of the Rules of Court . [ 16 ] Having regard to the factors listed in Rule 10.33(1), I note that the Plaintiff was successful in obtaining the court’s permission to relocate to South Carolina with the parties’ child. Of course, there is no monetary amount involved.

As was noted by the Court of Appeal, the issues were of the utmost importance; the child’s best interests were at stake and the trial decision had a significant impact upon the Defendant. These are factors which are in favour of the lower amount of costs argued by the Defendant. [ 17 ] However, there are other factors which support a higher award of costs. The trial was complex. It is unusual that a mobility trial would require seven days of trial time.

As I noted in my trial decision, there was a significant volume of evidence led, a fair amount of which was peripheral to the central issue of what was in the child’s best interests. Neither party was blameless in this regard – both parties called witnesses that did not provide the Court with much assistance on the key issue.

A voluminous set of exhibits with an agreed statement of facts was provided by agreement, consisting mostly of printouts of text messages, that required a significant amount of Court time to review, and although there was relevant information contained in those exhibits it was often buried in hundred of pages of irrelevant material. Expert witnesses were called by both parties and there was medical and psychological evidence to consider. [ 18 ] There were also several interlocutory applications brought by the parties (mostly the Defendant) relating to parenting issues.

The Plaintiff accuses the Defendant of using the litigation process as an attempt to coerce and control her. As noted in my trial decision, I had some concerns that the Defendant’s behaviour was coercive. The evidence showed that he was often argumentative, controlling, and engaged in unacceptable name calling and bullying. [ 19 ] I will briefly address the parties’ submissions regarding the offers made prior to trial.

The Plaintiff argues in submissions that “any attempts by the Mother to increase the Father’s parenting time voluntarily were rebuffed and rejected by the Father”, however, she does not make any further submissions regarding the issue of whether offers made by the Plaintiff ought to result in enhanced costs.

From that I take it that the Plaintiff is not specifically relying upon any offers as a basis for an award of enhanced costs, and I therefore need not review the offers exchanged by the parties in any great detail. [ 20 ] Certainly, the proceedings have been high conflict, and the relationship between the parties hostile. The consequences of that are that I permitted the Plaintiff to relocate to South Carolina with the parties’ child. The father’s relationship with his child has been drastically affected.

I take note of the Court of Appeal’s recognition of that fact in deciding not to grant the Plaintiff enhanced costs of the appeal. I am of a similar view. Granting enhanced costs in this case would not advance any public policy reason to award enhanced costs. [ 21 ] I am therefore left to decide what the proper scale of party/party costs is in this case, considering all the factors. The Plaintiff has expended over $200,000 in legal fees and disbursements leading up to the mobility/parenting trial. However, the information presented on behalf of the Plaintiff leaves certain issues unexplained; (

a) First, the degree to which the Plaintiff’s legal fees and disbursements up until the mobility/parenting trial also dealt with other issues such as child and spousal support or matrimonial property. There was evidence at trial that the parties had entered a consent order early in the litigation in relation to support, and that the father was paying child and spousal support and the mother was not working. However, these issues clearly remain outstanding as the parties’ litigation continues; (

b) Second, the breakdown between legal fees on one hand, and disbursements on the other. McAllister refers to “costs” and “fees” interchangeably but from the context it appears that indemnification for costs ought generally to be between 40-50% of a party’s legal

fees (not including disbursements). [ 22 ] Three points arise from this. First, it is not clear that all the costs incurred by the Plaintiff up until the mobility/parenting trial can be attributed solely to parenting and mobility. It is possible that some legal expenses are in relation to the remaining outstanding issues, although there is not sufficient evidence to demonstrate exactly how those expenses might be allocated.

I conclude, however, that the bulk of the legal fees expended by the Plaintiff up until the trial related to parenting and mobility – as noted, the court record shows one consent order relating to support, but the majority of the litigation leading up to the mobility/parenting trial was concerned with parenting and mobility. [ 23 ] Second, it is likely that the Plaintiff, because she was not earning income in the period of time leading up to the trial, was put in a position where she was paying her legal fees from the spousal and child support she was receiving from the Defendant. [ 24 ] Third, it is not possible on the evidence presented to precisely calculate 40 – 50% of the legal fees, excluding disbursements because the breakdown between those two categories has not been clearly set out by the Plaintiff. [ 25 ] Given all the circumstances, including the length and complexity of the trial and the relative financial positions of the parties, I conclude that it would be appropriate to follow the guidance provided in McAllister and award costs to the Plaintiff equivalent to the lower end of the range suggested by McAllister rather than simply defaulting to awarding costs on Column 1, as Column 1 does not provide the Plaintiff with reasonable and proper indemnification for her costs.

I exercise my discretion in this way notwithstanding my comments about the responsibility of both parties for the length and complexity of the trial. This is a case where the Defendant’s behaviour was concerning and certainly contributed to the overall complexity and tenor of the litigation more so than the Plaintiff’s. This is a case where one party gambled with his position but lost. His gamble likely resulted in diminished sums available for child and spousal support.

I conclude that the calculations of the Plaintiff’s legal fees upon Column 3 represents a reasonable estimation of 40- 50% of the Plaintiff’s legal fees. I therefore award the Plaintiff party/party fees based upon Column 3 of

Schedule C, plus disbursements and GST, subject to my further comments below. II. Disputed Items [ 26 ] The Defendant objects to several items which are included on the Plaintiff’s Bill of Costs which I will address individually. a. Practice Note 8 Intervention Report [ 27 ] The PN8 Intervention Report was ordered by Yungwirth J following a pre-trial conference on November 28, 2019. In her order, Yungwirth J ordered that the “scope and apportionment of the cost” shall be determined by the parties and reflected in an order once the report is obtained.

In her submissions, the Plaintiff argues that the order appointing Dr. Torres states that the cost of the PN8 report shall be shared in the first instance, with the Plaintiff’s share to be offset against her property and support claim, subject to a further determination by the Court. In his submissions, the Defendant argues that he has paid the entire cost of the PN8 report. The Plaintiff includes $1754 in her Bill of Costs as a disbursement described as “Perlita Torres Fee” (Ms.

Torres being the author of the PN8 report). [ 28 ] Although the Defendant argues that it is clear from Yungwirth J’s order that the cost was expected to be shared, I do not agree that is the case based on the wording of the order appointing Dr. Torres. [ 29 ] As the Defendant was unsuccessful in the parenting/mobility trial, I consider the cost of the PN8 report to be entirely his responsibility.

The case of SS v AS , 2021 ABQB 294 does not persuade me otherwise as it does not discuss any rationale for why such a cost ought to be apportioned nor does it discuss why or in what circumstances a court would prevent any party from being indemnified for the cost of a PN8 report. Similarly, LAU v IBU , 2016 ABQB 74 does not stand for the proposition that the Defendant says it does. In LAU , the Court directed the entire cost of the PN8 report to be borne by the losing party. [ 30 ] If the Plaintiff paid $1754 to Dr.

Torres for reasons relating to the PN8 report or the parenting/mobility trial, then that amount is allowed. b. Notice to Admit [ 31 ] The parties both gave lengthy and detailed testimony at trial about their relationship, its demise, and their interactions following separation, some of which duplicated information contained in the notice to admit, which itself was lengthy and detailed. I did not find that the notice to admit resulted in a shortening of trial time and accordingly I deny this item. c. Fees for Expert Witnesses (Dr. Clark, Dr.

Meiers) [ 32 ] The Plaintiff claims $4125.00 for “Expert Witness fee of Dr. Graeme Clark”, $9668.75 for “Fee of Dr. Graeme Clark re Report review and PN8 Critique”, and $3750.00 for “Expert Witness fee of Dr. Jo Ann Hammond Meiers. The Defendant argues that there is no basis for these fees, and in any event, Dr. Meiers did not testify as an expert. [ 33 ] I am left in a difficult position because the invoices breaking down Dr. Clark’s charges and supporting the basis and reasonableness of these disbursements were not put before me.

Although I do not question that the Plaintiff paid these charges, without adequate information the Court is being asked to speculate to a certain extent as to whether these charges are reasonable and should be permitted. [ 34 ] However, I did have the benefit of having the report of Dr. Clark in evidence and seeing him testify as an expert at trial.

There is no doubt that I found his report and testimony to be helpful, and in fact, I relied upon his opinions to a certain extent when making my decision. The PN8 report itself was lengthy and detailed, and I accept that it would have taken Dr. Clark many hours to properly review, dissect and prepare his response. On that basis I find that the fees he has charged of $9668.75 for the preparation of his report, and $4125 for his preparation for and attendance at trial reasonable and I therefore allow these disbursements. [ 35 ] Similarly, there is no explanation for the “expert witness fee” for Dr.

Meiers, nor was a copy of her invoice presented. Dr. Meiers was a psychologist who provided treatment for the Plaintiff. At the time of trial, Dr. Meiers was gravely ill and unable to attend in person. Her evidence was provided by way of affidavit, which she was cross examined on in advance of the trial itself. She was not qualified as an expert witness, rather, her evidence was that of a treating medical professional. [ 36 ] While I could speculate as to why this disbursement is described as an “expert witness fee”, I decline to do so. I accept that Dr.

Meyers likely charged a fee for the preparation of her affidavit and attendance for cross examination, but as noted, she was not qualified as an expert. I therefore will reduce this fee to $1000. d. File Opening Fee [ 37 ] This item is a fee whose purpose is to recover some of the law firm’s overhead. This expense is already taken into account under the

Schedule C fees. It is not properly claimable as a disbursement in a bill of costs and is disallowed. e. Trial Binder Preparation [ 38 ] Given the volume of exhibits it was necessary to have these materials properly organized and bound for the assistance of the Court, witnesses, and the parties, and it is reasonable to have a third party prepare such binders if the expense is not extravagant. There was nothing about the trial binders that I observed at trial which suggested they were done extravagantly in any way. This disbursement is allowed. f.

December 12, 2019 Parenting Application [ 39 ] Generally, the costs of interlocutory applications are dealt with at the conclusion of the application. If the order arising from an interlocutory application is silent then the default rule is that the losing party is to pay the costs of that application and the associated steps (such as, for example, questioning on affidavit) forthwith. [ 40 ] The order flowing from the December 12, 2019 application is silent as to who pays the costs.

However, I note that this application arose because of an application brought by the Defendant (who appears to have been successful to a certain extent in increasing his parenting time) and a cross-application brought by the Plaintiff for permission to travel with the child (in which she was successful). [ 41 ] The parties ought to have sought clarity as to the costs of this application from the Justice who heard it. I am not in position to assess the costs of an application that was not before me, absent a specific direction from the hearing Justice that costs be determined following the event.

I therefore disallow this item as well as the item related to the questioning of Dr. Ting on December 6. g. September 20, 2020 Special Chambers Application [ 42 ] Again, the parties ought to have sought clarity as to the costs of this application from the Justice who heard it. I am not in position to assess the costs of an application that was not before me, especially on the limited information presented, absent a specific direction from the hearing Justice that costs be determined following the event.

I therefore disallow this item as well as the items related to the questioning of the parties on their Affidavits sworn in support of this application. h. August 3, 2021 Application [ 43 ] I agree with the Defendant that the costs for this application were already determined by the hearing Justice, and I therefore disallow this item. III. Conclusions [ 44 ] The Plaintiff is entitled to her costs of the parenting/mobility trial calculated in accordance with Column 3 of

Schedule C to the Rules of Court , plus disbursements and GST, taking into account my directions on the disputed items herein.

Written submissions provided on the 3 rd day of February, 2023. Dated at the City of Edmonton, Alberta this 16 th day of February, 2023 . L.K. Harris J.C.K.B.A. Appearances: Sean Schaefer Demas Schaefer Family Lawyers for the Plaintiff Crystal A. Lawrence Lawrence & Tkachuk for the Defendant