DBF v BF, 2018 ABCA 108
McDonald, Veldhuis and Greckol JJA
13.5: Variation of time periods
14.88: Cost awards
The Respondent and Cross Appellant (“BF”) sought a ruling on Costs in an Appeal by Ms. F (“DBF”) following a Trial in which DBF sought inter alia, sole custody of the parties’ only child and permission to relocate to Turkey with the child (the “Underlying Appeal”). The Trial Judge denied the mobility Application, and DBF appealed the Trial Judge’s Decision. BF cross-appealed on the issue of set-off. DBF was partly successful on her Appeal, and BF’s Cross-Appeal was dismissed.
The Court noted that, as a preliminary matter, the Costs Ruling was sought more than two months after the Decision on the Underlying Appeal. Rule 14.88 requires that any request for a specific direction as to costs must be made within two months of the pronouncement of the Decision. The Court noted that the two-month limit can be relaxed under Rule 13.5(2). In this case, given the complexity of the issues involved in settling the formal Order for the Underlying Appeal and Cross-Appeal, the Court held that the two-month time limit should be relaxed.
Pursuant to Rule 14.88, the successful party on Appeal is presumptively entitled to Costs. The Court summarized that the main issue in awarding Costs was whether one party was “substantially successful” on appeal or, alternatively, whether there was divided success and no Costs should be awarded. The Court emphasized that success in family matters means substantial success and not absolute success. The Court noted that Costs of an appeal are not to be awarded on an issue-by-issue basis, but rather on the basis of substantial success. The Court found that there was mixed success for each party, and so each party was ordered to bear their own Costs.View CanLII Details