FJN v JK, 2018 ABQB 659
4.20: Confidentiality and use of information
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees
The Plaintiff was successful at a Trial concerning retroactive and ongoing child support after the Defendant denied paternity. The parties then returned to Court to determine Costs. The Plaintiff sought Costs amounting to double Column 4 of Schedule C of the Rules.
Moen J. first noted that since the Plaintiff was the “substantially successful” party, she was entitled to her Costs. Rule 10.33 sets out the principles that must be applied when Courts consider Costs awards. Her Ladyship also noted that Costs awards are discretionary and that, although Review Officers are bound by Schedule C, Judges are not.
Next, Moen J. considered which Column of Schedule C was applicable. Since the amount of retroactive and ongoing child support awarded exceeded $500,000, but was less than $1.5 million, it was held that Column 4 should apply. Although the Defendant had argued that some of the go-forward child support costs may become lower in the future, and therefore a lower Column of Schedule C should apply, Moen J. disagreed. Her Ladyship noted that, because the child at issue had special needs and would require additional care after the age of 18, retroactive and ongoing child support would exceed $500,000 in any event.
Moen J. also agreed that double Costs should be awarded for all steps taken in the Action. Her Ladyship noted that the Defendant – who was the party disputing paternity – refused to take a DNA test, which would have easily determined the issue. Instead, after the Court determined that the Defendant was the father based on other evidence, the Defendant appealed the issue, but eventually took a DNA test and admitted his paternity after six years. As a result of his refusal to take the test, extensive judicial resources were required to determine a simple issue. Her Ladyship held that this course of action, as well as the Defendant’s suggestion that he did not know he was the father, despite the Plaintiff advising him of that fact before the child was born, constituted blameworthy conduct and was an attempt to mislead the Court. Additionally, the Defendant’s refusal to disclose his income and failure to produce his tax returns in breach of Court Orders constituted blameworthy conduct in the litigation.
Lastly, Moen J. addressed particular Costs issues that were raised by the parties. It was noted that the Plaintiff was entitled to two sets of Costs for Questioning because her lawyer had attended Questioning of a third party. Moen J. also noted that even though the Plaintiff’s lawyer acted for her on a pro bono basis at one point, she was still entitled to Costs for those steps. However, the Plaintiff was not entitled to Costs for expert fees or other expenses relating to a JDR, as the JDR was confidential and ought not to be compensated by Costs pursuant to Rule 4.20.View CanLII Details