FODOR v FODOR, 2022 ABKB 854


10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

This was a Costs Decision following a mixed success family law Summary Trial. The Defendant, Ms. Fodor, sought elevated Costs on the basis that she had been substantially successful and had previously attempted to reach a settlement by providing a Calderbank offer. The Plaintiff, Mr. Fodor, submitted that each Party should bear their own Costs since neither Party was substantially successful.

The Court noted general propositions relating Costs Awards made in light of Calderbank offers including that, while Calderbank offers are relevant to Costs, double Costs or elevated Costs are not presumed; Calderbank offers, like any settlement proposal, must be clear, precise and certain to make a binding contract if accepted; and the Court may consider Calderbank offers in assessing Costs even where the offer falls short of the Trial outcome, including where the offer would have been a reasonable and proportionate compromise in all the circumstances. Referencing Rules 10.29 and 10.33, the Court further noted the general rule that a successful Party is entitled to Costs against the unsuccessful Party subject to the Court's general discretion and in light of the result of the Action, the degree of success of each Party, and other factors.

Noting successes by both Parties and agreements reached between the Parties based on Court-determined income and exemptions, the Court held that neither Party was substantially successful. The Court further noted that, unlike the Judgment, which provided for variation of spousal support, the Calderbank offer offered a fixed amount and that the Calderbank offer over-assessed Mr. Fodor’s income by $100,000, the result of which would have been substantial overpayment of child support, had the offer been accepted. Given the modest additional litigation expense leading to Summary Trial, the Court held that the Calderbank offer was reasonably rejected. Considering the Parties’ mixed success, the Court ordered that each party bear its own Costs.

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