S.L.T. v. A.K.T. et al., 2008 ABQB 450

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 28, 2008
• Citations: 2008 ABQB 450;(2008), 461 A.R. 339 (QB)

S.L.T. v. A.K.T. (2008), 461 A.R. 339 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. DE.033

S.L.T. (plaintiff) v. A.K.T. (defendant) v. Teem Energy Ltd. (third party)

(4803 130814; 2008 ABQB 450)

Indexed As: S.L.T. v. A.K.T. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

November 18, 2008.

Summary:

The parties were involved in matrimonial property litigation. As the successful party, the wife sought solicitor and client costs of the proceedings in the amount of $1,955,402 or, alternatively, double costs of $819,269.79.

The Alberta Court of Queen's Bench held that the wife was entitled to double costs in the amount of $819,269.79, calculated on the basis of column 5.

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. There are a number of written decisions involving these parties. For reported decisions, see (2007), 434 A.R. 69 and 461 A.R. 328. Other decisions are accessible online at www.mlb.nb.ca by searching under "S.L.T. v. A.K.T. et al.".

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - [See both Practice - Topic 7021 , Practice - Topic 7028.1 , Practice - Topic 7115 , Practice - Topic 7243 and Practice - Topic 7454 ].

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - [See Practice - Topic 7115 ].

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - [See Practice - Topic 7115 ].

Family Law - Topic 4189

Divorce - Practice - Costs - Settlement offers - [See Practice - Topic 7243 ].

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct (incl. counsel) - The parties were involved in matrimonial property litigation - As the successful party, the wife sought solicitor and client costs of the proceedings in the amount of $1,955,402 or, alternatively, double costs of $819,269.79 - The husband asserted that the wife should be deprived of costs because of her general conduct, including her deliberate over-reaction to a matrimonial dispute which led to a lock-down of her children's school and other traumatic results - The Alberta Court of Queen's Bench held that the wife was entitled to double costs in the amount of $819,269.79 - Both parties behaved badly to one another and relative to their children - However, that conduct was taken into account in coming to substantive decisions - That conduct should not be dealt with again in the costs assessment - See paragraphs 44 and 45.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct (incl. counsel) - The parties were involved in matrimonial property litigation - As the successful party, the wife sought solicitor and client costs of the proceedings in the amount of $1,955,402 or, alternatively, double costs of $819,269.79 - The husband asserted that the wife should be deprived of costs because of her litigation conduct - The Alberta Court of Queen's Bench held that the wife was entitled to double costs in the amount of $819,269.79 - The wife had not conducted the litigation inappropriately - She had never ignored, breached or flouted a court order - However, the husband had behaved very badly in the litigation, including continual breaches of court orders - The husband chose to conduct himself contemptuously - His conduct was both destructive and expensive - His choice of conduct had consequences - See paragraphs 46 to 51.

Practice - Topic 7028.1

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Unproven matters - The parties were involved in matrimonial property litigation - As the successful party, the wife sought solicitor and client costs of the proceedings in the amount of $1,955,402 or, alternatively, double costs of $819,269.79 - The husband asserted that the wife should be deprived of costs because of her unproven allegation of fraud - The Alberta Court of Queen's Bench held that the wife was entitled to double costs in the amount of $819,269.79 - While the wife did allege fraud and did not prove fraud, the fraud alleged was not glaring and was not likely to injure the husband's reputation - On the contrary, the allegation was a natural outcome of the husband's flagrant contempt of his disclosure obligation - Although he had not committed fraud, he had acted in a highly suspicious way - In those circumstances, it would be inappropriate to deprive the wife of the costs award to which she was otherwise entitled - See paragraphs 52 to 54.

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - The parties were involved in matrimonial property litigation - As the successful party, the wife sought solicitor and client costs of the proceedings in the amount of $1,955,402 or, alternatively, double costs of $819,269.79 - The Alberta Court of Queen's Bench held that the wife was entitled to double costs in the amount of $819,269.79, calculated on the basis of column 5 - While in most corollary relief situations that involved money, column 1 would be the most appropriate column, that conclusion arose from the fact that most situations involving, at least, child support were simple because they involved the application of the Federal Child Support Guidelines - However, here, the financial issues were the most important issues as between the parties - Those issues were inextricably intertwined with the parenting issues which were complex because of the very high conflict between the parties - Thus, column 5 was the appropriate column for the calculation of costs in these proceedings - See paragraphs 61 and 62.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The parties were involved in matrimonial property litigation - As the successful party and based on her Calderbank offer and offers that she made under the compromise provisions of the Rules of Court, the wife sought double costs - The Alberta Court of Queen's Bench held that the wife was entitled to double costs in the amount of $819,269.79 - The wife made an "excessively generous" Calderbank offer on December 7, 2004, which was open to December 10, 2004 - What followed from the husband's refusal of the offer was an expenditure of millions of dollars in legal and accounting fees in what was essentially a failed attempt to obtain the required disclosure from the husband - While the offer was only open for a short period, that period of time was reasonable - The husband was much better prepared than the wife to know how good the offer was - In addition to the Calderbank offer, the wife made two further offers under rule 174(1), one relating to marital property and one relating to a parenting regime - The property judgment gave the wife more than she would have retained had the husband accepted the offer - While the court's parenting judgment did not direct shared parenting in the mode that the wife had offered, it did order that the children were to remain with the wife while the necessary work was undertaken to return to a shared parenting regime - Therefore, the wife did not receive less in relation to parenting that what she had offered to the husband - The wife was entitled to double costs from December 7, 2004 - See paragraphs 32 to 43.

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - [See Practice - Topic 7243 ].

Practice - Topic 7248

Costs - Party and party costs - Offers to settle - Costs to successful plaintiff - [See Practice - Topic 7243 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - The parties were involved in matrimonial property litigation - As the successful party and based on the husband's repeated and continuous contempt for court orders for disclosure and other pretrial process, the wife sought solicitor and client costs of the proceedings in the amount of $1,955,402 - The Alberta Court of Queen's Bench held that the wife was not entitled to solicitor and client costs - The husband behaved disgracefully and contemptuously throughout the litigation - However, his conduct had already been severely penalized - His flouting of court orders related to disclosure resulted in a monitor being appointed for the husband and wife's closely held company, depriving the husband of the company's management - The husband's flouting of court orders related to parenting assessment resulted in a shared parenting regime being terminated - It would be unfair to sanction him again for his behaviour - See paragraphs 55 to 59.

Cases Noticed:

Hydro Kleen Systems Inc. et al. v. Park et al., [2003] A.R. Uned. 800; 2003 ABQB 955, refd to. [para. 5].

Mosher v. Reimer, [2004] A.R. Uned. 555; 2004 ABQB 496, refd to. [para. 5].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161 (Q.B.), refd to. [para. 5].

Goofers v. Goofers (2002), 332 A.R. 143; 2002 ABQB 1094, refd to. [para. 5].

Debora v. Debora, [2005] O.T.C. 203 (Sup. Ct.), refd to. [para. 5].

Allen v. University Hospitals Board et al. (2006), 384 A.R. 23; 2006 ABCA 101, refd to. [para. 5].

Proulx v. Proulx (2002), 316 A.R. 150; 2002 ABQB 151, refd to. [para. 5].

Krumm v. MacKay et al. (2003), 342 A.R. 169; 2003 ABQB 437, refd to. [para. 5].

Stuart v. Multan (2007), 213 Man.R.(2d) 201; 2007 CarswellMan 104 (Q.B.), refd to. [para. 6].

Bloom (Albert) Ltd. et al. v. Bentinck (Township) (1996), 1 O.T.C. 1; 29 O.R.(3d) 681 (Gen. Div.), affd. (1996), 96 O.A.C. 241 (C.A.), refd to. [para. 6].

Katrib v. Katrib, [2008] A.R. Uned. 203; 2008 CarswellAlta 321 (Q.B.), refd to. [para. 6].

Herman v. Delong (1999), 253 A.R. 9; 1999 CarswellAlta 1462 (Q.B.), refd to. [para. 6].

Illnicki v. MacLeod et al., [2003] A.R. Uned. 407; [2003] 11 W.W.R. 551 (Q.B.), refd to. [para. 6].

Mitran v. Guarantee RV Centre Inc. et al., [1999] 12 W.W.R. 669; 251 A.R. 77 (Q.B.), refd to. [para. 6].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 6].

Kerr v. Kerr (2001), 293 A.R. 384; 257 W.A.C. 384; 2001 ABCA 152, refd to. [para. 7].

Carroll v. Stonhard Ltd., [2001] O.T.C. 139 (Sup. Ct.), refd to. [para. 7].

Toronto General Trusts Corp. v. Maryfield (Rural Municipality), [1945] S.J. No. 68 (C.A.), refd to. [para. 7].

Turta v. Canadian Pacific Railway Co. (1952), 5 W.W.R.(N.S.) 529 (Alta. S.C.), refd to. [para. 7].

McAteer et al. v. Devoncroft Developments Ltd. et al. (2003), 340 A.R. 1; 2003 ABQB 425, refd to. [para. 7].

Mitrovic v. Mitrovic, [2007] A.R. Uned. 168 (Q.B.), refd to. [para. 61].

Counsel:

Norm Picard,Q.C. and Tina Huizinga (Barr Picard), for S.L.T.;

Brian Beresh, Q.C., and Michelle Kai (student-at-law) (Beresh Cunningham), for A.K.T.

This matter was heard on June 28, 2008, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on November 18, 2008.