L.D.W. v. K.D.M., 2012 ABQB 128

• Judge: Jeffrey, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 28, 2012
• Citations: 2012 ABQB 128;(2012), 534 A.R. 185 (QB)

L.D.W. v. K.D.M. (2012), 534 A.R. 185 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.086

L.D.W. (plaintiff) v. K.D.M. (defendant)

(4801 122280; 2012 ABQB 128)

Indexed As: L.D.W. v. K.D.M.

Alberta Court of Queen's Bench

Judicial District of Calgary

Jeffrey, J.

February 28, 2012.

Summary:

The parties divorced. "Very high conflict" litigation spanned almost 6.5 years until the end of the trial which dealt with the issues of custody and access, child and spousal support and distribution of matrimonial property. The wife was self-represented at trial.

The Alberta Court of Queen's Bench, in a decision reported at 508 A.R. 335, determined the issues. The parties each sought an award of costs, both pre-trial and trial.

The Alberta Court of Queen's Bench, in a decision reported at 525 A.R. 73, awarded the husband $31,212.31 in costs, being the net difference between the pre-trial costs of $2,283.75 payable by him, and the trial costs of $33,496 payable by the wife. The wife applied for leave to appeal the costs decision.

The Alberta Court of Queen's Bench denied the application. The wife had failed to satisfy the high threshold necessary to warrant an appeal of the costs decision. She had not identified a good, arguable case on an issue having enough merit to warrant scrutiny by the Court of Appeal that was also an issue of importance generally, that is, beyond its importance to the two parties.

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.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - [See third and fifth Practice - Topic 8298 ].

Family Law - Topic 2189

Custody and access - Practice - Costs - [See fifth Practice - Topic 8298 ].

Family Law - Topic 4128

Divorce - Practice - Parties - Representation by nonlawyer (incl. self) - [See fourth Practice - Topic 8298 ].

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - The plaintiff applied for leave to appeal the decision that she pay to the defendant a portion of his trial costs - In support of her application, the plaintiff submitted that since she had alleged that the trial decision was flawed, the court could not proceed to make a costs decision in respect of that trial - The Alberta Court of Queen's Bench stated that "[t]his is incorrect. A costs appeal is not the forum for challenging the trial decision. The costs assessment is based upon what transpired at trial and, often, the steps between commencement of the action(s) and the start of trial. If a trial decision is under appeal the issue of costs can be stayed, or a decision on costs made but its effect stayed. Here the appeal of the trial decision was abandoned. There is no basis for delaying the matter of costs on the grounds alleged when no appeal has been taken of the trial decision." - See paragraph 36.

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - The plaintiff applied for leave to appeal the decision that she pay to the defendant a portion of his trial costs - She requested that the court reconsider virtually all of the decisions at trial that went against her - The Alberta Court of Queen's Bench, in answer to that request, stated that "the opportunity to question evidence adduced at trial is at trial. An appeal of a costs decision is not an occasion to seek a second opportunity to refute evidence advanced at trial against one's interests that a party, for whatever reason, elected to not question at the time. It is also not an occasion to challenge the findings of fact at trial or the trial strategy of the opposite party." - See paragraphs 41 and 42.

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - "Very high conflict" family litigation spanned almost 6.5 years until the end of the trial which dealt with the issues of custody and access, child and spousal support and distribution of matrimonial property - The parties each sought an award of costs, both pre-trial and trial - The trial judge awarded the husband $31,212.31 in costs, being the net difference between the pre-trial costs of $2,283.75 payable by him, and the trial costs of $33,496 payable by the wife from her share of the proceeds of sale of the matrimonial home ($25,000) - The remaining $6,212.31 was payable by the wife forthwith - The wife applied for leave to appeal the costs decision - The Alberta Court of Queen's Bench denied the application - The wife had failed to satisfy the high threshold necessary to warrant an appeal of the costs decision - She had not identified a good, arguable case on an issue having enough merit to warrant scrutiny by the Court of Appeal that was also an issue of importance generally, that is, beyond its importance to the two parties.

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - The trial judge awarded the husband $31,212.31 in costs, being the net difference between the pre-trial costs payable by him, and the trial costs payable by the wife - The wife applied for leave to appeal the costs decision - She had been self-represented at trial - Both parties were unrepresented at the time costs were dealt with - The wife argued that the Bill of Costs included with the husband's submissions was prepared by his counsel and that he was able to rely on his counsel's knowledge of the sorts of disbursements for which costs might be recovered - The Alberta Court of Queen's Bench stated that, while the wife made a "fair comment", it was of no consequence - "The playing field was regardless of representation or not. The Rules of Court are clear that they are to apply equally to represented and unrepresented litigants. This includes the Rules pertaining to costs awards." - If the wife was separately seeking leave to appeal the decision in respect of the disbursement claim, that request was denied - Costs were awarded to the husband as the party achieving the greater degree of success - That award included disbursements - Even if the wife's additional $14,000 disbursement claim was substantiated by evidence, and was claimed in time for the husband to have opportunity to present any responding submissions to the court, it was unlikely to have been awarded - "Rarely does the loser recover disbursements from the winner, particularly when the loser is required to pay other costs of the opposite party" - Therefore any appeal on the purported, but unproven, $14,000 disbursement had no prospect of success - See paragraphs 45 to 47.

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - "Very high conflict" family litigation spanned almost 6.5 years until the end of the trial which dealt with, among other issues, custody and access - The trial judge awarded the husband $31,212.31 in costs - The wife applied for leave to appeal the costs decision - She argued that when the best interests of the children were involved in an issue before the court, there should not be an award of costs to either party - The Alberta Court of Queen's Bench disagreed - "This would have the effect of removing any risk of adverse consequence that ought to flow from advancing meritless arguments or positions, provided that the issue turned on the best interests of children. The existing practice enables the Court, in exercising its discretion on costs, to consider the relative merit of the positions espoused, including on issues turning on the best interests of children. This flexibility is not about to be exchanged for a more rigid free pass for parties to argue whatever they may contrive so long as the best interests of children are involved. This argument has no prospect of success before the Alberta Court of Appeal." - See paragraph 51.

Cases Noticed:

Lameman et al. v. Alberta et al. (2011), 521 A.R. 121; 2011 ABQB 724, appld. [para. 6].

Yakimyshyn v. Yakimyshyn (1994), 157 A.R. 157; 77 W.A.C. 157 (C.A.), refd to. [para. 7].

Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al. (1996), 184 A.R. 63 (C.A.), refd to. [para. 7].

Forsyth v. Sehn (2006), 408 A.R. 180; 2006 ABQB 752, refd to. [para. 8].

Director of the Parentage and Maintenance Act (Alta.) v. B.C. (1993), 143 A.R. 181 (Q.B.), refd to. [para. 9].

Currie v. Thomas (1985), 3 C.P.C.(2d) 42 (B.C.C.A.), refd to. [para. 9].

Indian Residential Schools, Re (2010), 487 A.R. 348; 495 W.A.C. 348; 2010 ABCA 202, leave to appeal denied (2010), 416 N.R. 393; 2010 CarswellAlta 2468 (S.C.C.), refd to. [para. 29].

Roman Catholic Bishop of the Diocese of Calgary v. Canada (Attorney General) - see Indian Residential Schools, Re.

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 505(3) [para. 2].

Counsel:

L.D.W. was self-represented;

K.D.M. was self-represented.

This leave to appeal application was heard by written submissions filed January 30 and February 9 and 16, 2012. Jeffrey, J., of the Alberta Court of Queen's Bench, delivered the following memorandum of decision, with reasons, dated at Calgary, Alberta, on February 28, 2012.