AAG v JLG, 2022 ABKB 818


9.12: Correcting mistakes or errors
9.14: Further or other order after judgment or order entered
10.29: General rule for payment of litigation costs

Case Summary

Following a Trial Decision, issues arose between the Parties with respect to the Defendant’s non-payment or late payment of child support, and his inability to pay the Costs awarded following Trial. Justice Dilts noted at the outset that Costs, when ordered, are payable forthwith pursuant to Rule 10.29, absent other direction from the Court.

Some time after the Trial Decision, the Defendant filed for bankruptcy. The Plaintiff brought several Applications in relation to the consequences of the Defendant’s bankruptcy, but relevant here was the Plaintiff’s Application seeking an apportionment of the Costs awarded following Trial to family support and maintenance. 

Justice Dilts, who presided over the Trial, began the analysis by considering the rule of functus officio, which states that “the court has no jurisdiction to reopen or amend a final decision, except in two cases: (1) where there has been a slip in drawing up the judgment, or (2) where there has been error in expressing the manifest intention of the court.” The Court observed that the exceptions to the rule are codified in Rule 9.12, which grants the Court the power to correct certain mistakes or errors in a Judgment or Order.

Justice Dilts also noted that Rule 9.14 gives the Court authority, following a Judgment or Order, to make any further Order that is required to give effect to the Court’s original intention. The Court cited several examples of Rule 9.14 being applied in family proceedings to apportion a Costs Award in order to clarify and give effect to the Court’s intention, including Yassa v Parker, 2018 ABQB 305.

Justice Dilts concluded that had she been aware of the Defendant’s intention to make an assignment into bankruptcy at the time of issuing the Costs Decision following Trial, she would have addressed the apportionment of Costs at that time.

In the result, the Court held that the majority of the time spent at Trial involved evidence or argument bearing on child support and spousal support and that therefore it was appropriate to allocate 70% of the Costs Award as relating to family support and maintenance and thus was not extinguished by the Defendant’s discharge following bankruptcy.

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