D.H. v. J.E.H., (2002) 215 Sask.R. 183 (FD)

• Judge: Ryan-Froslie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 01, 2002
• Jurisdiction: Saskatchewan
• Citations: (2002), 215 Sask.R. 183 (FD);2002 SKQB 39

D.H. v. J.E.H. (2002), 215 Sask.R. 183 (FD)

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. FE.056

D.H. (petitioner/respondent by counter-petition) v. J.E.H. (respondent/petitioner by counter-petition) (1997 DIV. No. 616)

J.H. (plaintiff) v. D.H. (defendant)

(1999 Q.B. No. 2008; 2002 SKQB 39)

Indexed As: D.H. v. J.E.H.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Ryan-Froslie, J.

February 1 and 6, 2002.

Summary:

Spouses separated in 1990 after 23 years' marriage. In 1997, the husband applied for an unequal division of marital property. The wife sought an equal division and spousal support. The wife also sued for monies that were allegedly the property of their family holding company and improperly retained by the husband. That claim was based on fraud, shareholder oppression, assumpsit and constructive trust. The wife also sought punitive damages. The two actions were heard together.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a judgment reported 214 Sask.R. 39, dismissed the wife's action. There was no fraud, shareholder oppression or agreement to be enforced respecting the monies. The constructive trust claim was more properly dealt with in the marital property claim. The wife received an equal share of a substantial portion of the spouses' assets. The court unequally divided the balance of marital property 60% to the husband and 40% to the wife. Neither the husband nor the wife were employed. The wife was supported by the husband since the date of separation and she now possessed approximately $1,500,000 in capital assets. The court dismissed the wife's claim for spousal support. The issue of costs was reserved.

The Saskatchewan Court of Queen's Bench, Family Law Division, awarded the husband 80% of his taxed costs on Column 4 up to the end of the third day of the nine day trial. The husband was entitled to 100% of his taxed costs under Column 4 for the last six days of trial. Because of the husband's settlement offer (served on the eve of the trial), which was more favourable than what the wife received at trial, the husband was awarded double costs for the last six days of the trial.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - A family law proceeding was devoted 20% to spousal maintenance (divided success) and 80% to marital property and the wife's civil claim (husband successful) - Additionally, the husband had made an offer to settle that exceeded what the wife received at trial - However, the offer was made on the eve of the trial (Friday afternoon before the Monday trial) - The husband sought costs, including double costs from the date of the settlement offer - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that the successful spouse in family law proceedings should not be denied costs without good reason - The court awarded the husband 80% of his taxed costs on Column 4 up to the end of the third day of the nine day trial - The husband was entitled to 100% of his taxed costs under Column 4 for the last six days of trial - Because of the husband's settlement offer was served only on the eve of the trial (insufficient notice and time to consider it before the trial commenced), the husband was awarded double costs only for the last six days of the trial - See paragraphs 4 to 38.

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - [See Family Law - Topic 966 ].

Family Law - Topic 4189

Divorce - Practice - Costs - Settlement offers - [See Family Law - Topic 966 ].

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - A husband was awarded costs in a family law proceeding - The husband sought increased costs for two experts above the amounts provided for in Schedule IV - The Saskatchewan Court of Queen's Bench, Family Law Division, in awarding increased costs for one of the two experts, stated that "the onus is on the party requesting an increase for expert witness fees over the amount set out in Schedule IV, to establish that such increase is justified. The expert's account should contain sufficient detail to enable the court to determine if the time spent and the amount charged are reasonable and properly incurred. The entire costs of an expert witness should not be reimbursed as to do so would amount to full indemnity. This would be equivalent to costs on a solicitor/client basis. ... The taxable costs recovered for an expert witness should reflect his contribution at trial." - See paragraphs 23 to 24.

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that the considerations in determining the appropriate fee permitted for an expert witness were: "(i) that the expert's services were reasonably necessary as part of the party's case at trial; (ii) that the services were incurred in procuring evidence, preparing a report or attending at trial; (iii) that the services were not incurred to assist counsel in the preparation or presentation of their case; (iv) that attendance at trial was for no longer than reasonably necessary to give the evidence; (v) that the services of the expert were not duplicated at trial; (vi) that the charges of the expert were reasonable; (vii) that the costs of the services were not disproportionate to the economic value of the issue at risk; (viii) that the services were not incurred by an expert to increase his level of expertise; and (ix) that the costs are such that it is equitable the unsuccessful party bears them." - See paragraph 22.

Practice - Topic 7119

Costs - Party and party costs - Special orders - Pretrial conference - Spouses both claimed costs for a pretrial conference - The judge at the pretrial conference determined that neither spouse complied with the Rules of Court respecting the filing of pretrial briefs and that neither spouse was prepared for the pretrial - The judge made no order as to costs - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "in light of the fact that neither party was properly prepared for that pretrial nor had they complied with the Queen's Bench Rules of Court, I am not prepared to allow either of them to claim any costs against the other for attendance at the ... pretrial or for preparation of their pretrial briefs. Parties should not be rewarded for their failure to comply with the Rules of Court." - See paragraph 16.

Practice - Topic 7245.4

Costs - Party and party costs - Offers to settle - Time of offer - The husband in a family law proceeding made a settlement offer on the eve of the nine day trial (Friday afternoon before the Monday trial) - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that the settlement offer, although exceeding what the wife received at trial, did not save any costs in the preparation for trial nor did it give the wife a fair opportunity to review and evaluate the offer before the trial commenced - Although rule 181 permitted a settlement offer to be made at any time, the lack of reasonable notice was relevant to the court's exercise of its discretion to adjust costs - The court awarded the husband double costs based on the settlement offer, but only for the last six days of the nine day trial - See paragraphs 35 to 36.

Cases Noticed:

MacGregor v. MacGregor (1981), 11 Sask.R. 153 (Dist. Ct.), refd to. [para. 5].

Ramsay v. Ramsay (1994), 119 Sask.R. 81 (Q.B.), refd to. [para. 5].

Dagenais v. Dagenais (1995), 138 Sask.R. 142 (Q.B.), refd to. [para. 5].

Derow v. Derow (1996), 140 Sask.R. 241 (Q.B.), refd to. [para. 5].

Herman et al. v. Miller et al., [1988] 2 W.W.R. 72; 64 Sask.R. 71 (Q.B.), refd to. [para. 7].

Sunnyside Nursing Home v. Builders Contract Management Ltd. (1989), 75 Sask.R. 1 (C.A.), refd to. [para. 7].

Hallson v. McIvor, [1955] 1 D.L.R. 489 (Sask. C.A.), refd to. [para. 7].

Mennie v. McKinnon, [1931] 1 D.L.R. 986 (Sask. C.A.), refd to. [para. 7].

Thole v. McKenna, [1992] S.J. No. 237 (Q.B.), refd to. [para. 16].

Kletchko v. Gerhardt (1984), 36 Sask.R. 50 (Q.B.), affd. (1986), 48 Sask.R. 125 (C.A.), refd to. [para. 16].

Kapell v. Abel (1998), 164 Sask.R. 301 (Q.B.), refd to. [para. 20].

Joubert v. Rosetown (Town) (1986), 54 Sask.R. 287 (Q.B.), refd to. [para. 20].

M.J.P. v. P.A.P. (1996), 154 Sask.R. 245 (Q.B.), refd to. [para. 21].

Creative Touch Millworks Inc. v. Royal Insurance Co. of Canada (1991), 99 Sask.R. 127 (Q.B.), refd to. [para. 23].

Quintal v. Datta (1987), 59 Sask.R. 32 (Q.B.), refd to. [para. 23].

Chan and Yip v. Blythe et al., [1998] Sask.R. Uned. 239 (Q.B.), refd to. [para. 23].

Jorgensen v. Liskowich (1989), 79 Sask.R. 230 (Q.B.), refd to. [para. 23].

Bueckert v. Mattison (1996), 149 Sask.R. 81 (Q.B.), refd to. [para. 24].

Electronic Superstore Ltd. v. Geransky Brothers Construction Ltd. et al. (1991), 90 Sask.R. 150 (Q.B.), refd to. [para. 35].

Harrison v. Brassard (1994), 127 Sask.R. 147 (Q.B.), refd to. [para. 35].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 184B [para. 32]; rule 549(6) [para. 11]; rule 562(1), rule 563 [para. 19].

Counsel:

A. Wiebe, Q.C., and S. Denysiuk, for the petitioner/respondent;

C. Cuelenaere and S. Frisky, for the respondent/defendant.

This matter was heard before Ryan-Froslie, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, who delivered the following judgment on February 1, 2002, and an addendum to judgment on February 6, 2002.