Gardner v. Gardner, 2008 ABQB 750

• Judge: Manderscheid, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 31, 2008
• Citations: 2008 ABQB 750;(2008), 444 A.R. 288 (QB)

Gardner v. Gardner (2008), 444 A.R. 288 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. DE.090

Patricia Gail Gardner (plaintiff) v. Gary Gardner (defendant)

(4803 129045; 2008 ABQB 750)

Indexed As: Gardner v. Gardner

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

December 8, 2008.

Summary:

The parties cohabited for a period of time, then married in 1992, separated in 2003 and divorced in 2007. The wife did not work outside the home during the marriage. During the marriage, the husband started a company of which he became president, CEO and one of four directors. At issue was the value and division of the matrimonial property; entitlement to, amount and duration of spousal support; and the amount of child support.

The Alberta Court of Queen's Bench, in a decision reported at 444 A.R. 271, determined the issues accordingly. The parties made submissions regarding costs.

The Alberta Court of Queen's Bench awarded the wife lump sum costs of $80,000, inclusive of disbursements and GST.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - The parties cohabited for a period of time, then married in 1992, separated in 2003 and divorced in 2007 - The issues of the valuation and division of matrimonial property and entitlement to, amount and duration of spousal support and amount of child support went to trial - The court determined the issues - The wife sought costs - The husband asserted that each party should bear his or her own costs on the basis that there was mixed success at trial - The Alberta Court of Queen's Bench held that the wife was entitled to a costs award - The wife was successful on the more substantive and contentious issues, including the manner in which shares in the husband's company were distributed and spousal support - The husband successfully argued that an after-acquired RRSP should be exempt from distribution and regarding a portion of the wife's inheritance that could not be traced - The remaining issues had been virtually agreed to prior to trial - Overall, the wife was more successful - See paragraphs 3 to 7.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - The parties cohabited for a period of time, then married in 1992, separated in 2003 and divorced in 2007 - The issues of the valuation and division of matrimonial property and entitlement to, amount and duration of spousal support and amount of child support went to trial - The court determined the issues - The husband was ordered to pay the wife $546,404.74 in cash - The wife sought costs on Column 4 of Schedule C - The Alberta Court of Queen's Bench awarded the wife lump sum costs of $80,000 - There was a presumption that issues of support, custody and access were taxed under Column 1 of Schedule C - However, the majority of the trial time dealt with matrimonial property, for which no presumption applied - The court examined the factors set out in rule 601(1) to determine whether the presumption regarding the corollary relief portions of the trial should be rejected - Those, combined with the husband's issues with the wife's draft bill of costs and the fact that it would be difficult for the parties to agree on any contentious matters, let alone any bill of costs, led the court to conclude that a lump sum award was appropriate - The court accepted the wife's argument that an inflationary factor should be included - Inflation was not strictly calculated based on any particular methodology, but was a factor considered by the court in determining the amount of the lump sum award - See paragraphs 8 to 20.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - The parties cohabited for a period of time, then married in 1992, separated in 2003 and divorced in 2007 - The issues of the valuation and division of matrimonial property and entitlement to, amount and duration of spousal support and amount of child support went to trial - The wife made two offers to settle, one in 2007 and one in 2008, that were rejected - The husband's 2008 offer made under rule 169 was rejected - The court determined the issues - Each party submitted that they were entitled to double costs based on the offers - The Alberta Court of Queen's Bench held that the wife was entitled to costs, but not double costs despite the two settlement offers - The wife's 2007 offer was clearly a formal offer under rule 170 - If the judgment was more favourable than that, double costs were presumed - However, the 2008 offer was merely a "Calderbank letter" and was but one factor to consider in the court's exercise of discretion - The net effect of the offer determined whether double costs were awarded; the judgment need not better the offer on each and every point - An offer need only be equal to the judgment where the offer was made under the rules, but a Calderbank letter had to be clearly bettered by the judgment for double costs to follow - Here, the judgment was less favourable to the wife than her 2007 offer - The judgment was more favourable than the 2008 offer by $8,440.60, excluding unquantifiable amounts - However, the unquantifiable amounts were all less favourable than the judgment - The wife was not entitled to double costs - Regarding the husband's offer, the judgment was less favourable by $193,043, excluding unquantifiable amounts - The husband was clearly not entitled to double costs - See paragraphs 21 to 46.

Family Law - Topic 4182

Divorce - Practice - Costs - Lump sum - [See second Family Law - Topic 966 ].

Family Law - Topic 4189

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

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - [See first Family Law - Topic 966 ].

Practice - Topic 7110.4

Costs - Party and party costs - Special orders - Increase in scale of costs - Inflation - [See second Family Law - Topic 966 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See second Family Law - Topic 966 ].

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - [See third Family Law - Topic 966 ].

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - [See third Family Law - Topic 966 ].

Cases Noticed:

Katrib v. Katrib, [2008] A.R. Uned. 203; 2008 ABQB 162, refd to. [para. 3].

Broda v. Broda et al., [2003] A.R. Uned. 208; 2003 ABQB 257, refd to. [para. 10].

Spar Aerospace Ltd. v. Aerowerks Engineering Inc. et al. (2007), 428 A.R. 18; 2007 ABQB 688, refd to. [para. 16].

Brooks et al. v. Stefura (1998), 222 A.R. 345; 1998 ABQB 557, refd to. [para. 17].

Pond (Peter) Holdings Ltd. v. Shragge (2002), 326 A.R. 44; 2002 ABQB 746, refd to. [para. 25].

Calderbank v. Calderbank, [1976] Fam. 93; [1975] 3 W.L.R. 586; [1975] 3 All E.R. 333 (C.A.), refd to. [para. 26].

McAteer et al. v. Devoncroft Developments Ltd. et al. (2003), 340 A.R. 1; 2003 ABQB 425, refd to. [para. 26].

Bains v. Bains et al. (2008), 441 A.R. 70; 2008 ABQB 319, refd to. [para. 26].

Shipka v. Shipka (2001), 288 A.R. 106; 2001 ABQB 135, additional reasons 2001 ABQB 667, refd to. [para. 29].

Goulbourne v. Buoy et al. (2003), 350 A.R. 256; 2003 ABQB 1029, dist. [para. 29].

Allen v. University Hospitals Board et al. (2000), 276 A.R. 345; 2000 ABQB 965, dist. [para. 29].

Metz v. Metz, [2004] A.R. Uned. 751; 2004 ABQB 896, refd to. [para. 29].

Patterson v. Hryciuk et al., [2005] A.R. Uned. 122; 2005 ABQB 136, refd to. [para. 31].

Counsel:

Robert M. Curtis, Q.C. (McCuaig Desrochers LLP), for the plaintiff;

Douglas N. Skovberg (Skovberg Hinz), for the defendant.

This application was heard on October 31, 2008, by Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 8, 2008.