D.B.C. v. R.M.W., 2005 ABQB 898

• Judge: Topolniski, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 28, 2005
• Citations: 2005 ABQB 898;(2005), 393 A.R. 160 (QB)

D.B.C. v. R.M.W. (2005), 393 A.R. 160 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JA.141

D.B.C. (plaintiff) v. R.M.W. (defendant)

(4801 109652; 2005 ABQB 898)

Indexed As: D.B.C. v. R.M.W.

Alberta Court of Queen's Bench

Judicial District of Calgary

Topolniski, J.

November 28, 2005.

Summary:

The parties were involved in lengthy, acrimonious divorce litigation. The children refused the father's access visits. The case management judge found the mother to be in contempt for failing to comply with an order directing her to take steps to improve the relationship between the father and children. The sanction for contempt was left for determination by the trial court.

The Alberta Court of Queen's Bench, in a decision reported at 374 A.R. 156, determined the property division and support issues. The father sought costs under column 5 of schedule C with double trial costs due to his rule 169 offer and solicitor and client costs for matters relating to parenting because the mother had alienated the children from him.

The Alberta Court of Queen's Bench ordered the mother to pay schedule C costs calculated under the column which reflected the net value of the matrimonial property that was directed to be immediately distributed. As punishment for contempt, the court ordered the mother to pay costs of $27,060 (one third of the father's fees incurred on pretrial motions to the date of the contempt finding) and to indemnify the father for all fees paid to the children's independent legal counsel, counsellors and a doctor.

Editor's note: certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Contempt - Topic 3315.1

Punishment - Monetary orders - The children of parents involved in divorce litigation refused the father's access visits - The case management judge found the mother in contempt for failing to facilitate an improved relationship between the father and children - The sanction was left for determination at trial - The Alberta Court of Queen's Bench ordered the mother to pay costs of $27,060 and to indemnify the father for all fees paid to the children's independent legal counsel, counsellors and a doctor - Applying the factors set out in Dreco Energy Services Ltd. et al. v. Wenzel et al. (Alta. C.A.), led to the conclusion that costs, though imprecise, were an appropriate sanction - The mother's motivation was her desire to turn the children against the father - The litigation had been acrimonious and drawn-out with numerous pretrial motions - The mother had blatantly failed to act in the children's bests interests and was highly culpable - Her actions resulted in a foreseeable and possibly permanent effect - The amount ordered was intended to compensate the father for his thrown-away costs on parenting issues and to punish the mother - See paragraphs 20 to 38.

Family Law - Topic 2006

Custody and access - Access - Access order - Noncompliance - Punishment - [See Contempt - Topic 3315.1 ].

Family Law - Topic 2175

Custody and access - Enforcement of orders - Contempt proceedings - [See Contempt - Topic 3315.1 ].

Family Law - Topic 2189

Custody and access - Practice - Costs - [See Contempt - Topic 3315.1 ].

Family Law - Topic 2189.1

Custody and access - Practice - Costs - Children's lawyer (i.e. "statutory" lawyer appointed to provide services for child) - [See Contempt - Topic 3315.1 ].

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - Following the trial of a lengthy, acrimonious divorce, the father sought costs under column 5 of schedule C with double trial costs due to his rule 169 offer - The wife had also made an offer but submitted that each party should bear their own costs - The Alberta Court of Queen's Bench ordered the mother to pay schedule C costs calculated under the column which reflected the net value of the matrimonial property that was directed to be immediately distributed - The parties' success on pretrial motions was fairly equal - However, the father was entitled to costs due to his greater success at trial - Neither offer passed the test for double costs - The father's offer was made too late - The mother's offer on spousal support was for significantly more than she received - Her offer on property division did not come close to the trial result - While she had retained the matrimonial home and her vehicle, that success did not change the complexion of the offer and award when viewed globally - Finally, while the mother had technically beaten the award for base child support, her offer had been made when the father's income was much lower - See paragraphs 6 to 18.

Family Law - Topic 4182

Divorce - Practice - Costs - Lump sum - [See Contempt - Topic 3315.1 ].

Family Law - Topic 4189

Divorce - Practice - Costs - Settlement offers - [See Family Law - Topic 4176 ].

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - [See Family Law - Topic 4176 ].

Cases Noticed:

North American Systemshops Ltd. v. King & Co. et al. (1989), 99 A.R. 138 (Q.B.), refd to. [para. 1].

Purich v. Purich (1999), 248 A.R. 145; 1999 ABQB 212 (Q.B.), refd to. [para. 1].

Buhler v. Buhler (1991), 30 R.F.L.(3d) 344 (Alta. C.A.), refd to. [para. 1].

Stewart v. Stewart (1982), 37 A.R. 57; 20 Alta. L.R.(2d) 193; 28 R.F.L.(2d) 225 (C.A.), refd to. [para. 1].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al., [1993] 4 W.W.R. 670; 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), refd to. [para. 1].

R.H.J., Re (1998), 235 A.R. 358 (Q.B.), refd to. [para. 1].

Zelazo v. Masson (1992), 129 A.R. 388; 1 Alta. L.R.(3d) 310; 4 C.P.C.(3d) 253 (Q.B.), refd. to. [para. 1].

Georgia Pacific Canada Inc. v. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local Lodge No. D513 (1999), 243 A.R. 219; 1999 CarswellAlta 202 (Q.B.), refd to. [para. 1].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261 (C.A.), refd to. [para. 2].

N.M. v. F.W. (2004), 348 A.R. 143; 321 W.A.C. 143; 2004 ABCA 151, refd to. [para. 3].

Lawson v. Lawson, [2005] A.R. Uned. 132; 2005 ABCA 253, refd to. [para. 3].

Hodgson v. Hodgson (2005), 361 A.R. 190; 339 W.A.C. 190; 2005 ABCA 13, refd to. [para. 3].

Laskosky v. Laskosky, [1999] A.R. Uned. 162 (Q.B.), refd to. [para. 3].

Goofers v. Goofers (2002), 332 A.R. 143; 2002 ABQB 1094, refd to. [para. 3].

Broda v. Broda et al. (2004), 346 A.R. 376; 320 W.A.C. 376; 2004 ABCA 73, refd to. [para. 3].

B.A.V. v. C.A.V. (2001), 300 A.R. 361; 2001 ABQB 753, refd to. [para. 3].

Dreco Energy Services Ltd. et al. v. Wenzel et al. (2005), 371 A.R. 11; 354 W.A.C. 11; 2005 ABCA 185, appld. [para. 3].

Authors and Works Noticed:

Fradsham, Allan A., Annotated Alberta Rules of Court (2005), p. 334 [para. 2].

Counsel:

Ronald S. Foster, Q.C., for the plaintiff;

Laurie E. Allen and Gay Benns, for the defendant.

This application was heard by Topolniski, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on November 28, 2005.