This case related to the remedies that a person seeking financial disclosure can seek and enforce when the party who is obliged to pay fails to make full financial disclosure.

The Applicant, Ms. Carnwell, sought to enforce a previous Court Order, requiring the Respondent, Mr. Carnwell, to fulfill certain financial disclosure obligations. In this Application, Ms. Carnwell argued that Mr. Carnwell failed to comply with the previous financial disclosure Order and was thus in Civil Contempt. She also sought enforcement of Costs penalties and further Court orders to compel compliance.

The Court noted that Rule 12.41(3) permits a recipient (i.e., Ms. Carnwell) to file a Notice to Disclose, requesting documents that are relevant and material to the proceeding. Sidnell J. noted that recipients have a number of options available to them when a payor (i.e., Mr. Carnwell) fails or refuses to provide disclosure. First, where a payor fails to provide disclosure within one month of being served with a Notice to Disclose, Rule 12.41(7) grants the Court the jurisdiction to take a number of steps, including: (a) to set a date for the payor to provide the documents requested in the Notice to Disclose; or (b) to draw an adverse inference against the payor and impute an income to the payor and to order that the payor pays support in the amount the Court considers appropriate; or (c) to order that the payor pays Costs to the recipient to fully compensate the recipient for all costs incurred in the proceeding.

The Court also noted that Rule 10.49 grants the Court jurisdiction to require a party, lawyer, or other person to pay a penalty to the Clerk of the Court, if: (a) the party, lawyer or other person contravenes or fails to comply with the rules or a practice note or direction of the Court without adequate excuse; and (b) the contravention or failure to comply, in the Court’s opinion, has interfered with or may interfere with the proper or efficient administration of justice.

Third, the Court noted Rules 10.51 to 10.53, which are the Civil Contempt Rules. However, relying on Carey v Laiken, 2015 SCC 17, Sidnell J. noted that these Rules “should be used ‘cautiously and with great restraint’” and that they are an “enforcement power of last rather than first resort”.

The Court noted that where a person is declared to be in civil contempt, Rule 10.53(1) then grants the Court the discretion to order numerous penalties, including, among others, imprisonment, the imposition of a fine, or the dismissal of a claim. In addition to the penalties or sanctions set out in Rule 10.53(1), Rule 10.53(2) grants the Court the discretion to make a Costs Award against a person declared to be in Civil Contempt. However, the Court noted that penalties issued under this Rule are not payable to the opposing party, but rather to the Government of Alberta because they are directed at the public interest in the due administration of justice, not any private interest.

Ultimately, Justice Sidnell found that Ms. Carnwell’s Application was not properly before the Court because it engaged Rules 10.51 to 10.53 and Mr. Carnwell was not served in the manner of a commencement document, as required by Rule 10.52. As a result, there could be no finding or declaration that Mr. Carnwell remained in breach and contempt of the previous Order. However, citing Rule 9.15(4), which gives the Court jurisdiction to vary Orders on grounds that are “just”, Sidnell J. varied the previous Order to allow for an adverse inference to be made against Mr. Carnwell should he fail to comply with his financial disclosure requirements, and to impute an income to him in the amount the Court considered appropriate, if required.

Turning to the Costs that Ms. Ms. Carnwell was entitled to, Sidnell J. began by noting that the Court was permitted to award Costs in an amount that fully compensated Ms. Carnwell for all her costs incurred in the proceedings: Rule 12.41(7)(c). Because Ms. Caldwell was also at times a self-represented litigant, the Court cited Rule 10.31(5), which states that in appropriate circumstances, the Court may order, in a Costs Award, payment to a self-represented litigant of an amount or part of an amount equivalent to the fees specified in Schedule C.

However, citing Hicks v Gazley, 2020 ABCA 239, Sidnell J. noted that Alberta Courts are typically “very conservative” in awarding Costs to self-represented litigants and that, under Rule 10.31(5), an award of Costs to a self-represented litigant are awarded only in “exceptional circumstances”. The reason for this is because a self-represented litigant does not incur any legal fees; thus, the ordinary objective of indemnification is not needed.

Here, it was found that Mr. Carnwell never fully provided his financial disclosure and, as a result, Ms. Carnwell was required to take several legal steps both as a self-represented litigant and as a litigant represented by counsel. Citing Rule 12.41(7)(c), the Court found that it was appropriate to award Ms. Carnwell Costs under Schedule C, column 1, in the amount of $800 for the steps she took as a self-represented litigant. For the period that she was represented by counsel, she was entitled to legal Costs in the amount of $9,601.32, representing almost full indemnity for her legal costs.